Supreme Court of California Justia
Docket No. S014394
People v. Ledesma

Filed 8/17/06

IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S014394

v.

FERMIN RODRIGUEZ LEDESMA,

Santa Clara County

Defendant and Appellant. )

Super.

Ct.

No.

72102



After a retrial following reversal of defendant’s conviction and death

sentence, defendant was convicted of first degree murder, kidnapping, and two

counts of robbery, and true findings were returned on allegations that he

personally used a firearm in the commission of these offenses. (Pen. Code,

§§ 187, 207, 211, 12023.5, 1203.6.) 1 Two special circumstances were found

true — the intentional killing of a witness, and murder in the commission of a

robbery. (Former §190.2, subd. (c)(2), (3)(i) & (ii).)2 After the penalty phase of

the trial, the jury returned a verdict of death and the trial court denied defendant’s

motion to modify the death verdict. (§ 190.4, subd. (e).) This appeal is automatic.

(§ 1239, subd. (b).) We reverse one of the robbery counts and the robbery special

1

Unless otherwise indicated, all further statutory references are to the Penal

Code.
2

Because defendant’s offenses took place in August and September of 1978,

his case is governed by the death penalty law that was adopted by the Legislature
in 1977. (Stats. 1977, ch. 316.) That law subsequently was replaced by an
initiative measure approved by the voters on November 7, 1978.

1


circumstance, but in all other respects affirm defendant’s conviction and death

sentence.

I. FACTS

The trial, which took place in 1989, was defendant’s second trial for

offenses arising out of the robbery and murder of Gabriel Flores in 1978.

Defendant first was convicted of these crimes and sentenced to death in 1980. In

addition to his automatic appeal in that matter, defendant filed a habeas corpus

petition in this court alleging that his trial attorney had provided constitutionally

ineffective assistance. We appointed a referee to take evidence and make findings

of fact and conclusions of law regarding that claim. The referee concluded, and

this court agreed, that trial counsel had provided defendant with inadequate legal

assistance on the basis of numerous inadequacies in his representation, including

counsel’s failure to conduct adequate investigation and research, in particular with

regard to the defense of diminished capacity. (People v. Ledesma (1987) 43

Cal.3d 171, 223, 224 (hereafter Ledesma I.) Accordingly, we vacated the

judgment and remanded defendant’s case to the superior court.

At the retrial, the prosecution presented evidence that on August 26, 1978,

Mr. Flores was working at a Hudson gas station in the City of San Jose. That

afternoon, he called his manager at home and reported that he had just been

robbed and had obtained the license number of the motorcycle used by the

robbers. Police officers went to the gas station and interviewed Mr. Flores. He

described the robbers as two Mexican males, and explained that one of them

stayed on the motorcycle and the other brandished a white gun and asked for his

money. One of the robbers took some cash and went through some drawers, and

the two men then left. About $30 was missing from the gas station. Mr. Flores

provided the police officers with the license plate number of the motorcycle.

2

Police officers received a radio broadcast indicating that the motorcycle

was registered to defendant, and they promptly went to the address listed on the

motorcycle registration. They were told that defendant no longer lived there, and

were directed to his current residence. When the officers arrived at defendant’s

apartment, he was not at home. Two visitors let them in, one of whom was Millie

Dominguez. While they were there, the telephone rang and a police officer

answered it, speaking in Spanish and identifying herself as Millie Dominguez.

The caller identified himself as Fermin Ledesma and said that he was “hot,” that

the police were looking for him, and that she should lock the apartment and the

doors of his car and take a walk. The police were unsuccessful in locating

defendant at that time.

Three days after the robbery, the police showed Mr. Flores a six-image

photographic lineup. He identified a picture of defendant as looking like the

person who held the gun during the robbery. The police then obtained a warrant

for defendant’s arrest. On September 1, 1978, police officers proceeded to

defendant’s apartment. They did not find him there, but defendant’s friend Jesse

Perez was in the apartment. Because Jesse resembled the description of the

second robber, the police took him into custody for questioning. During the

interview, Jesse was told that a warrant had been issued for defendant’s arrest, that

Jesse was also a suspect, and that a photographic lineup with Jesse’s picture would

be shown to the victim. He was released after the interview.

A few days later, on September 5, 1978, Mr. Flores disappeared. At

approximately 3:00 that afternoon he had started work at the same gas station that

had been robbed about one week earlier. Later that evening, the police found the

gas station open but with no attendant on the premises. Three days later, on

September 8, 1978, Mr. Flores’s body was found in a ravine in the City of Gilroy.

There were four gunshot wounds to his body from .22-caliber bullets, and two stab

3

wounds to the chest. Mr. Flores had been wearing light tan boots when he arrived

at work on the day he disappeared, but when his body was found it lacked any

footwear. He had no paper money in his pockets, only a small number of coins.

According to the gas station manager, Mr. Flores normally carried about $30 in

cash when he was working, so that he could make change for customers. Three

or four days after Mr. Flores disappeared, the manager noticed that a tapestry that

had been hanging in the gas station was missing.

Defendant was not immediately arrested because, shortly after the killing,

he moved to Salt Lake City, Utah. In March of 1979, a deputy sheriff who was

attempting to locate defendant in San Jose pulled over a car in which defendant

was a passenger. When the deputy asked defendant his name, he replied “you

have the right guy,” and he was arrested for the robbery and murder of Mr. Flores.

No physical evidence connected defendant to the gas station robbery or the

murder, but a number of witnesses testified that defendant had admitted

committing the crimes. At trial, Santiago Ontiveros, a friend of defendant’s,

denied remembering anything defendant told him about the robbery, but in a taped

interview he had told the police that defendant had said he committed the robbery

with Jesse Perez. Sylvia Lopez Ontiveros, who had been married to Santiago

Ontiveros, also denied at trial remembering that defendant had said anything to her

about the crimes. Her contrary preliminary hearing testimony was read into the

record. She testified at the preliminary hearing that during a telephone call,

defendant told her he had killed a person who had identified him in a robbery.

According to that testimony, defendant told her that if he eliminated the witness,

there would be no one to testify against him. When he went to the gas station, the

victim did not recognize him, but was killed anyway. Defendant told Sylvia

Ontiveros that he was going to leave town and change his identity. A statement

4

made by Sylvia Ontiveros to the police was consistent with her preliminary

hearing testimony.

Jona Cardona, who had been Jesse Perez’s girlfriend at the time of the

crimes, testified that she overheard a conversation in which defendant said that he

and Jesse had robbed a gas station and that the person they robbed had identified

defendant from a photograph and knew his motorcycle license number. According

to Cardona, defendant said he was going to obtain revenge on the man who

worked at the gas station. Later, after she learned the man had been killed, she

overheard another conversation in which defendant and George Perez discussed

how the man had died: Defendant and three others ― George, Jesse, and someone

known as “Crazy Joe” ― went to the gas station and asked the man to put some

oil in the back of their truck. They pushed him into the truck, drove him into the

mountains, and shot and stabbed him. In another conversation recounted by

Cardona, the other individuals teased Jesse because he would not stab the man and

because he stole the man’s boots. After defendant had been arrested, Cardona

made an anonymous telephone call to the police to report what she had heard,

because she believed that defendant was receiving all the blame even though

others were involved. A tape recording of that telephone call was played at the

trial.

Cardona’s sister, Shirley Chavez, testified that she had overheard a

conversation between defendant, George Perez, and “Crazy Joe.” According to

Chavez, in this conversation defendant did most of the talking. He said that he

and Jesse had robbed a gas station. Later defendant, Jesse, George, and Joe went

back and kidnapped the victim because he had selected defendant’s picture from a

lineup. Defendant shot him. He asked the others to stab the victim so that he

would not be the only person involved. They dumped the body in an orchard.

Jesse kept the victim’s boots.

5

As noted above, shortly after the murder, defendant moved to Salt Lake

City. Two men who met defendant while he was in Utah testified that defendant

had admitted committing a robbery and murder. Michael Shay testified that in

1979 defendant told him he was wanted for a gas station robbery and a murder in

California. Defendant told Shay he had warned the victim not to “narc” on him.

He returned to the gas station, asked the attendant to put a case of oil into his

vehicle, and then shoved him into the vehicle. According to Shay, defendant said

he drove the victim to the mountains and shot him in the head and chest.

Similarly, Floyd Cowdell testified that defendant told him he had committed a

robbery at a gas station and had gone back to kill the witness, and that he was

wanted for murder. Defendant said he kidnapped the attendant, took him into the

hills, and shot and stabbed him.

The defense contested the prosecution’s case in numerous respects. It

challenged on a variety of grounds the credibility of each prosecution witness who

testified concerning defendant’s admissions, including the witnesses’ drug use at

the time of the crimes, bad character, motives to lie and to curry favor with the

police, and prior inconsistent statements. The defense also offered evidence that

the murder may have been committed by one Joe Guerra, the “Crazy Joe”

mentioned in some of the witnesses’ testimony as a participant in the crimes. Jona

Cardona identified a picture of Guerra as looking like the person she had referred

to as “Crazy Joe.” The police had interviewed Guerra in connection with the

present case. In that interview, Guerra denied involvement in this offense but

admitted setting up hits for the Mexican Mafia. His former girlfriend testified that

he once asked her what she would think if he told her he had killed the person at

the Hudson gas station in 1978, but she told him she did not want to hear about it.

The defense, in support of two alternative theories, presented lay and expert

testimony regarding defendant’s personality and mental condition. The first

6

theory was that, to the extent defendant may have made statements admitting these

crimes, he either was telling lies to make himself seem more important to his

peers, or, because of his extensive drug use, he did not really remember whether

he had committed the crimes and was using information he received from other

persons to fill the gaps in his memory. Second, defendant claimed diminished

capacity. Defense experts opined that defendant was incapable of premeditating

or forming the intent to kill at the time the crimes occurred, because of his

extensive phencyclidine (PCP) use combined with his low intelligence and the

effects of brain damage caused by beatings he received as a child and exposure to

toxic chemicals.

In support of these mental defect defenses, several witnesses testified

concerning defendant’s heavy use of PCP in 1978. Witnesses also testified that he

was more of a follower than a leader and that he had a propensity to exaggerate or

tell lies to make himself seem more successful and important to his peers.

Prosecution witness Floyd Cowdell testified that when defendant told him about

the crimes, he appeared to be trying to act “macho.” When defendant was a child,

he was frequently beaten by his father and his older brother. He was teased as a

child because he was slower than other children and had buck teeth and a large

cyst over his eye.

An expert on drug addiction, H. Westley Clark, testified for the defense that

PCP alters perceptions and can cause psychosis, delusions, and hallucinations. As

Dr. Clark explained, a person under the influence of PCP could appear to function

normally but have a memory gap, which is similar to what occurs in an alcohol

blackout. Persons who have memory gaps tend to deduce what happened or fill

the gap with information suggested by another person, and come to believe that

they actually remember the prior event. Dr. Clark opined that the memory of a

chronic PCP user generally would be unreliable and that a person under the

7

influence of PCP could not deliberate, although he or she might be able to form

the intent to kill.

A psychologist, Dr. Anne Evans, testified concerning the results of

psychological tests she performed on defendant. His intelligence quotient was in

the low average range, but he scored much lower on the verbal test than on other

aspects of the tests. The tests she administered suggested the possibility of brain

damage. When defendant was young, he was teased by his peers because of the

cyst over his eye and his buck teeth, and because he was skinny and slow.

According to Dr. Evans, defendant attempted to compensate for his feelings of

inadequacy by bragging. Dr. Evans asserted that if defendant claimed he was

involved with the killing, it is possible he could have convinced himself that was

true after hearing other individuals say this was so, or that he was trying to build

himself up. Defendant told her he thought he knew who had committed the crime

but could not tell her who it was. He also said he could not remember but believed

he was not responsible, while acknowledging it seemed possible that he was. Dr.

Evans opined that, in 1978, defendant could not have premeditated, and lacked the

capacity to deliberately intend to kill or to form malice ― both because of his

mental defects and because PCP interferes with impulse control and with the

ability to deliberate and think clearly, sometimes to the point of causing psychosis.

Dr. Eric Morgenthaler, a licensed clinical psychologist who performed

neuropsychological tests on defendant, found him to be fine in some areas but

impaired in others. According to Dr. Morganthaler, defendant is able to function

in the world but is slow in processing information and responding to it. His

pattern of neurological defects suggests organic brain damage. Dr. Morgenthaler

explained that defendant’s history of head traumas, his chronic drug use, and his

exposure to toxic chemicals were possible sources of brain damage and that

persons with brain damage are generally more susceptible to the effects of drugs.

8

Dr. Fred Rosenthal, a psychiatrist, testified that defendant appeared to have

brain damage that produced lapses of judgment and an inability to think creatively

and deal with complex material. According to Dr. Rosenthal, defendant had low

self-esteem because of his chaotic childhood and the beatings he suffered during

that period. Dr. Rosenthal explained that defendant resorted to drugs for relief

from both psychic and physical pain and that defendant’s need to feel powerful

and overcome feelings of worthlessness could lead him to exaggerate matters,

such as admitting a killing he did not commit. According to Dr. Rosenthal, even

telling a doctor that he committed a murder could be a way of establishing power

in the relationship, and a person who was intoxicated with PCP would lack the

ability to deliberate or think clearly, or to form the mental states of express or

implied malice. Finally, Dr. Rosenthal stated that a person with brain damage

tends to be more sensitive to further injury and to drugs.

Dr. Michael Radelet, a sociologist, testified concerning a study he had

conducted of persons who had been convicted of murder but who were in fact

innocent of that charge. Dr. Radelet found that false confessions sometimes occur

when the person does not actually remember the crime but confesses, believing

himself responsible, and when the person knows he did not commit the crime but

is boasting. Dr. Radelet stressed that drug use and a history of making false

statements reduce the probability that a confession is true.

On rebuttal, the prosecution presented the testimony of Dr. John Glathe, a

psychiatrist who had been appointed by the court to examine defendant and advise

defense counsel before defendant’s first trial. Dr. Glathe testified that defendant

told him he had committed the robbery at the gas station and that one week later

he went back and kidnapped the victim, killing him by shooting and stabbing him.

The prosecution also presented testimony from a psychologist, Dr. Lee

Coleman, who challenged the reliability of the defense experts and disputed their

9

conclusions. Dr. Coleman opined that the various psychological tests and

assessment tools employed by the defense experts were unreliable or irrelevant to

the issues and that none of them were useful in determining, after the fact, the

nature of a defendant’s state of mind at an earlier time. In Dr. Coleman’s opinion,

although the use of drugs could incapacitate a person to the extent that he or she

could not form the intent to commit a crime, a person so impaired by drugs would

lose the ability to act before losing the ability to form the intent to act. In Dr.

Coleman’s view, the most reliable indicator of a person’s intent is “what they do,

how they do it, and the context in which they do it,” and laypersons are just as

successful, if not more so, as mental health professionals in determining a person’s

intent. Dr. Coleman asserted that the presence of organic brain disorder reveals

nothing about a person’s intent; in Dr. Coleman’s view, if the brain disorder

interferes with intent, that same disorder also would be reflected in the person’s

behavior. Furthermore, in Dr. Coleman’s opinion, none of the evidence presented

by the defense experts supported the conclusion that defendant had organic brain

damage.

The jury found defendant guilty on all charges and found true the various

allegations, including the special circumstances. At the penalty phase, the

prosecution presented evidence that when defendant was in Utah during February

1979, he committed two armed robberies of gas stations and an attempted robbery

of a market. During the attempted robbery, defendant fled from the store when the

owner produced a shotgun. Floyd Cowdell testified that defendant told him that

the store owner took a shot at him and he shot back.

In mitigation, defense counsel presented testimony concerning defendant’s

history and background that supplemented the information presented during the

guilt phase, relating to the abuse suffered by defendant as a child. Mr. Shiraldi, a

social worker, conducted a background investigation of defendant’s social history

10

and described how defendant was beaten as a child and teased because of his

appearance and mental slowness. Shiraldi reiterated that, as a result, defendant

suffered from low self-esteem and turned to drugs at an early age. When

defendant married and began residing with his wife, he was doing relatively well,

working hard and relying less on drugs and alcohol. He discovered, however, that

his wife was being unfaithful to him. The social worker explained that after

defendant and his wife separated, he resided with an aunt and an uncle in

Coalinga, where he worked regularly, helped around the house, and contributed

financially to the household. Still, the social worker testified, defendant was very

depressed about having separated from his wife and his children, eventually

returning to San Jose in the hope of reuniting with them. When this effort was

unsuccessful, his drug use increased.

Several witnesses testified that during the time defendant was incarcerated,

he became more religious, accepted responsibility, and felt remorse for his crimes.

Defendant expressed remorse to Dr. Rosenthal and said he was disturbed by the

realization that defendant was involved in someone having been killed. Dr.

Rosenthal was aware defendant had wanted to plead guilty. A jury consultant who

worked for the defense testified that defendant consistently desired to plead guilty

and receive a life sentence.

Defendant’s cousin corresponded with defendant while defendant was in

prison, instructing him on the Bible. She testified that defendant wanted to make

peace with God and be forgiven for his sins. The chaplain at the county jail

testified that defendant took communion, had expressed remorse for his past

lifestyle, had great concern for his daughters, and hoped he still could do

something productive with his life. Father Wood, a Jesuit priest who had

discussed defendant with the jail chaplain and had met defendant once, testified

that defendant admitted committing a crime and said he was sorry. Father Wood

11

thought defendant felt remorse and wished to be allowed to live so that he would

have the opportunity to repent. A psychologist who worked in the prison system

testified that, if given a life sentence, defendant would have a chance to do useful

work, improve his education, and participate in a religious program.

II. GUILT PHASE ISSUES

A. Grand Jury Indictment

Defendant contends that under the Fifth, Eighth, and Fourteenth

Amendments to the federal Constitution he could not be lawfully prosecuted for a

capital offense or sentenced to death in the absence of a grand jury indictment. To

the contrary, California’s practice of charging by information after a preliminary

hearing does not violate the federal Constitution. (Rose v. Mitchell (1979) 443

U.S. 545, 577, fn. 7; Hurtado v. California (1884) 110 U.S. 516, 538; In re Terry

(1971) 4 Cal.3d 911, 926.) Grand jury oversight of the prosecutor’s decision to

seek the death penalty is not compelled by the Eighth Amendment.

“[P]rosecutorial discretion to select those eligible cases in which the death penalty

will actually be sought does not in and of itself evidence an arbitrary and

capricious capital punishment system or offend principles of equal protection, due

process, or cruel and/or unusual punishment.” (People v. Keenan (1988) 46

Cal.3d 478, 505.) No authority supports defendant’s contention.

B. Jury Selection







1. Number of peremptory challenges

Defendant argues that the trial court erred in limiting him to 20 peremptory

challenges. At the time of his first trial, section 1070 permitted each side in a

capital case to exercise 26 peremptory challenges. Section 1070 was repealed

effective January 1, 1989. (Stats. 1988, ch. 1245, § 30, p. 4155.) The same

enactment added Code of Civil Procedure, section 231, subdivision (a), which

provides only 20 peremptory challenges to each side in a capital case. (Stats.

12

1988, ch. 1245, § 2, p. 4152.) Defendant argues that former section 1070

governed his case because (1) he was entitled to have his second trial conducted

under procedures no less beneficial to him than the first trial, and (2) pretrial

proceedings — including motions and discovery — began in his retrial before the

effective date of Code of Civil Procedure section 231.

A new or amended statute applies prospectively only, unless the Legislature

clearly expresses an intent that it operate retroactively. (Tapia v. Superior Court

(1991) 53 Cal.3d 282, 287.) “[A] law governing the conduct of trials is being

applied ‘prospectively’ when it is applied to a trial occurring after the law’s

effective date, regardless of when the underlying crime was committed.” (Id. at

p. 289.) Application of a change in law that occurred after the crime took place is

retroactive only if it changes the legal consequences of a defendant’s past conduct.

(Id. at p. 298.) In Tapia, this court held that changes in the procedures for

conducting voir dire that were made by Proposition 115 could be applied to the

defendant’s case even though the crime with which he was charged took place

before the effective date of the changes. (Id. at p. 299.) Likewise, application in

defendant’s trial of Code of Civil Procedure section 231, subdivision (a)’s changes

to the procedures for voir dire did not constitute a retroactive application of that

statute.

We reject defendant’s argument that application of Code of Civil Procedure

section 231 to his case is retroactive because the pretrial portions of his trial began

before that statute went into effect. The operative date for determining

prospective application of a statute is the “date of the conduct regulated by the

statute.” (Tapia, supra, 53 Cal.3d at p. 291; see People v. Hayes (1989) 49 Cal.3d

1260, 1274 [holding that a new statute specifying conditions under which the

testimony of a witness who has undergone hypnosis may be admitted could not be

applied in a retrial after the effective date of the statute when the witness had been

13

interviewed under hypnosis before the effective date of the statute].) Code of

Civil Procedure section 231, subdivision (a) governs the conduct of the jury

selection portion of the trial. Therefore, application of the statute that was in

effect at the time defendant’s jury was selected is a proper, prospective application

of the statute.

Defendant also argues that he should have been tried under the procedures

applicable at his first trial, because he was entitled to be placed in no less

advantageous a position had he not been denied his constitutional right to effective

representation at his first trial. In other words, he contends that the reduction in

the number of peremptory challenges available to him constituted a form of

prejudice caused by his first attorney’s ineffective assistance. Defendant’s

contention that the application of Code of Civil Procedure section 231 to his case

can be attributed to his counsel’s ineffectiveness is questionable, but even if he

were correct, he has failed to establish that he was prejudiced. If former section

1070 had been applied at trial, the prosecution would have been entitled to the

same number of peremptory challenges as the defense. There is no basis in this

record upon which to conclude that it would have been to defendant’s advantage

had both sides been given additional challenges.

Defendant argues that even if he was not statutorily entitled to 26

peremptory changes, the trial court abused its discretion in denying him those

additional challenges. Defendant contends that the court erroneously believed it

lacked the power to grant additional challenges and therefore failed to exercise its

discretion. In denying defendant’s request for 26 peremptory challenges, the court

cited People v. Whitmore (1967) 251 Cal.App.2d 359 and People v. Carter (1961)

56 Cal.2d 549, two cases that appear to support the proposition that the trial court

may not grant more peremptory challenges than are permitted by statute. (But see

People v. Bittaker (1989) 48 Cal.3d 1046, 1088 [when a defendant claims the

14

court erroneously denied a challenge for cause and expresses dissatisfaction with

the jury, granting an additional peremptory challenge may be an appropriate

remedy].) Even if we assume the trial court was mistaken about the scope of its

authority, we find no abuse of discretion here, because defendant has not provided

any justification ― either to this court or to the trial court ― for the trial court to

have exercised its discretion to grant defendant 26, rather than 20, peremptory

challenges. Furthermore, to support a claim that he is constitutionally entitled to

more peremptory challenges than are provided by statute, a defendant must

establish “at the very least that in the absence of such additional challenges he is

reasonably likely to receive an unfair trial before a partial jury.” (People v. Bonin

(1988) 46 Cal.3d 659, 679.) Defendant has not made such a showing.

2. Death penalty voir dire

Defendant makes a number of challenges to the adequacy of the procedures

employed during the voir dire of jurors concerning their views regarding the death

penalty. Prospective jurors initially filled out a lengthy questionnaire addressed

solely to their views concerning the death penalty. Each was then questioned

individually concerning his or her ability to make a penalty decision, in

accordance with then applicable procedures established in Hovey v. Superior

Court (1980) 28 Cal.3d 1. Those jurors who were not excused during the Hovey

voir dire then completed a second questionnaire, which addressed their general

qualifications, and participated in the general voir dire. In a few instances,

discussion of some jurors’ views regarding the death penalty also took place

during the general voir dire. Defendant contends that the jury selection process

was arbitrary and unfair, in violation of the Sixth, Eighth, and Fourteenth

Amendments to the federal Constitution and article I, sections 7, and 15 of the

California Constitution, in numerous respects. As explained below, we find no

error.

15

The trial court’s denial of defense counsel’s request to provide the jurors

with a single, consolidated questionnaire on both death penalty and general issues

did not deprive counsel of the use of general information critical to an adequate

Hovey voir dire. Those jurors who were not disqualified during the Hovey voir

dire were required to complete the subsequent general questionnaire. As in People

v. Clark (1990) 50 Cal.3d 583, 596-597, “[d]efendant was not precluded from

attempting to show in the subsequent general voir dire that a juror harbored any

specific bias that would cause him to vote for the death penalty without regard to

mitigating evidence, and thus should be excused for cause.” (See also People v.

Medina (1995) 11 Cal.4th 694, 746.)

Defendant’s contention that the Hovey voir dire was inadequate because the

trial court conducted it without a full understanding of the applicable death penalty

law is without merit. As noted above, these proceedings were governed by the

version of the death penalty law that was adopted by the Legislature in 1977,

rather than the version of the law adopted by initiative in November of 1978,

shortly after the charged offenses were committed. Defendant contends the trial

court was under the mistaken impression that jurors would be instructed to

“weigh” aggravating and mitigating factors (as required by the 1978 death penalty

law) in addition to being instructed to “consider, take into account, and be guided

by” the factors (as required by both the 1977 and 1978 laws). (See § 190.3;

former § 190.3, added by Stats. 1977, ch. 316, § 11, pp. 1258-1260.) Under both

laws, the jury must consider the aggravating and mitigating factors and has the

“responsibility to decide what penalty is appropriate under all the relevant

circumstances.” (People v. Brown (1985) 40 Cal.3d 512, 544.) The weighing

requirement simply makes clear that jurors are to limit their consideration to the

factors listed in the statute. (Id.; People v. Boyd (1985) 38 Cal.3d 762, 773.) It is

inconceivable that the difference between the two laws could have made a

16

significant difference in any juror’s ability to follow the law and impartially

consider both possible punishments.

We cannot conceive of how defendant could have been prejudiced by the

circumstance that, during voir dire, the jurors were told by the trial judge and

defense counsel that the words “life without possibility of parole” mean exactly

what they say, but were told later, during deliberations, to ignore the possibility

that a person serving a term of life without possibility of parole might some day be

released. Instructing jurors to take literally the words “life without possibility of

parole” served to impress upon them the seriousness of their decision and to

overcome the common misperception that all life prisoners may eventually be

paroled. (See People v. Thompson (1988) 45 Cal.3d 86, 129-130.) Furthermore,

defense counsel himself informed jurors during voir dire that life without parole

meant exactly that, and the prosecutor’s objection to that statement was overruled

by the trial court.

The court did not err in permitting some jurors to be questioned about their

views concerning the death penalty during the general voir dire. This practice is

not improper. (See People v. Davenport (1995) 11 Cal.4th 1171, 1204.)

Defendant contends that the questioning of some jurors about their views on the

death penalty in the presence of the others tainted them, but fails to establish any

specific prejudice. Defendant similarly fails to establish that the jury was

“tainted” by Juror Carol S., who mistakenly had been dismissed and later was

called back for general voir dire. Carol S. discussed her views on the death

penalty in the presence of the other members of the panel and ultimately was

excused because she would be unable to return a death verdict under any

circumstances. Defendant’s contention that other jurors who were present during

the voir dire of Carol S. learned what answers to give in order to have themselves

removed from the jury is pure speculation.

17

Defendant contends that sealing the juror questionnaires violated his, and

the public’s, right to a public trial. The instructions that accompanied the juror

questionnaires informed the jurors that these documents would be used only by the

court and lawyers and that they would be kept in confidence under seal after the

jury was selected. Defendant’s claim is forfeited by his failure to make any

objection at trial to the handling of the questionnaires. (See People v. Edwards

(1991) 54 Cal.3d 787, 813 [a defendant may waive right to public trial by

acquiescing in an order of exclusion]; People v. Thompson, supra, 50 Cal.3d at

p. 157 [right to public trial may be waived by failure to assert it in a timely

fashion].)

Defendant also contends that the trial court erred in permitting jurors to

take home the questionnaires in order to complete them. This claim is forfeited by

defendant’s failure to object on this ground at trial. In any event, defendant cites

no authority to support this contention. Jurors were informed in writing that their

answers to the questionnaire would have the effect of an answer given under oath

and were directed by the judge to “fill out the questionnaire by yourself and not

discuss it with anyone.” Defendant points to nothing in the record indicating that

any juror failed to abide by these instructions. We cannot discern how the

procedure followed could have affected the impartiality of the jury. (See People v.

Stewart (2004) 33 Cal.4th 425, 456 [rejecting claim that Code of Civil Procedure

section 223 required prospective jurors to complete the questionnaire in the

presence of the other prospective jurors].)

3. Challenges to Juror Peter W.

Defendant makes a number of contentions related to the trial court’s refusal

to excuse Juror Peter W. or to grant defendant an additional peremptory challenge

in order to excuse him. At the time Peter W. underwent general voir dire,

defendant had used 19 of his 20 peremptory challenges. Peter W. worked for the

18

county department of corrections. During voir dire, the prosecutor asked him

whether he knew defendant. Peter W. replied that he was employed in the main

jail, and that he believed defendant “stayed in the old building.” The prosecutor

then questioned him further concerning whether he had seen defendant at the jail.

Defense counsel moved for a mistrial on the ground that the prosecutor improperly

had informed the jurors that defendant was in custody. The court denied the

motion for mistrial but, upon defendant’s request, the court ordered the prosecutor

not to delve any further into the juror’s occupation “as it relates to the defendant.”

Defense counsel asked for one additional peremptory challenge, “because

there is contamination prejudice.” The trial court denied that request as well.

Defense counsel then challenged Peter W. for cause on the ground that the juror

knew that defendant was in custody. Defense counsel questioned the juror further

concerning whether the nature of his job might affect his ability to serve, and the

juror indicated that it would not. During this questioning, Peter W. reconfirmed

his earlier statements that he would be very cautious in making a decision that

could result in a severe punishment. Defense counsel then explained to the judge

that counsel faced a dilemma: he could either employ his last peremptory

challenge to remove a juror who had a leaning against the death penalty, or retain

him even though he was contaminated as a result of his knowledge that defendant

was currently in custody. Defense counsel offered to stipulate to excuse the juror

for cause. The prosecutor agreed to the stipulation for tactical reasons, but stated

he did not believe the trial court had erred in its rulings. The trial court refused to

accept the stipulation, stating that the juror was qualified and that there was no

impediment to his service. Defense counsel employed his final peremptory

challenge to excuse another juror, and Peter W. served on defendant’s jury.

Defendant contends the trial court abused its discretion in refusing to accept

the stipulation. Defendant asserts that the parties are entitled to stipulate to the

19

excusal of a juror absent “extraordinary circumstances.” Instead, “[a]ssessing the

qualifications of jurors challenged for cause is a matter falling within the broad

discretion of the trial court.” (People v. Weaver (2001) 26 Cal.4th 876, 910; see

Code Civ. Proc. §§ 225, subd. (b)(1) [specifying grounds for challenge for cause],

230 [challenges for cause shall be determined by the court].) Defendant has cited

no authority suggesting a court is required to accept the parties’ stipulation that a

juror be excused for cause. (See People v. Singe (1932) 12 Cal.App. 107, 111

[court is not required to accept the parties’ stipulation on issues of law].)

Defendant relies on the test established to determine whether parties who

have settled a case while the appeal is pending are entitled to a stipulated reversal.

(See Neary v. Regents of University of California (1992) 3 Cal.4th 273.) The

standard established in Neary was based, in large part, on policies relevant to the

settlement of civil actions — policies that are inapplicable in the present context.

(See Neary, supra, 3 Cal. 4th at pp. 277-280.)

“On appeal, we will uphold the trial court’s decision if it is fairly supported

by the record, and accept as binding the trial court’s determination as to the

prospective juror’s true state of mind when the prospective juror has given

conflicting or ambiguous statements.” (People v. Farnum (2002) 28 Cal.4th 107,

132.) The court did not abuse its discretion in concluding that Peter W. was

qualified to serve on defendant’s jury. The juror did not have actual contact with

defendant through his employment at the jail and expressed no opinion suggesting

he could not be fair and impartial.3

3

With respect to this and virtually every other claim raised on appeal,

defendant urges that the error or misconduct he is asserting infringed various of
his constitutional rights to a fair and reliable trial. In most instances, to the extent
defendant raised the issue at all in the trial court, he failed explicitly to make some
or all of the constitutional arguments he now advances. In each instance, unless

(footnote continued on next page)

20

Defendant contends that no deference is due the trial court’s ruling, because

juror Peter W.’s employment as a corrections officer in the county jail system

where defendant was housed constituted “implied bias” — a presumption of bias

that could not be overcome by a finding that he could be fair and impartial. Under

California law, a juror may be excused for “implied bias” only for one of the

reasons listed in Code of Civil Procedure section 229, “and for no other.” (Code

Civ. Proc. § 229.) If the facts do not establish one of the grounds for implied bias

listed in that statute, the juror may be excused for “[a]ctual bias” if the court finds

that the juror’s state of mind would prevent him or her from being impartial.

(Code Civ. Proc. § 225, subd. (b)(1)(C).)

None of the statutory grounds for a finding of implied bias is present in this

case, and the trial court concluded that Peter W. was not actually biased.

Defendant argues nevertheless that Peter W.’s position as a corrections officer and

his knowledge that defendant was incarcerated rendered him unable to decide the


(footnote continued from previous page)

otherwise indicated, it appears either that (1) the appellate claim is of a kind (for
example, failure to instruct sua sponte, or erroneous instruction affecting
defendant’s substantial rights) that required no trial court action by the defendant
to preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court itself was asked to apply, but merely assert that
the trial court’s act or omission, to the extent erroneous for the reasons actually
presented to that court, had the additional legal consequence of violating the
Constitution. To that extent, defendant’s new constitutional arguments are not
forfeited on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 435-438; see
also People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman (2003)
31 Cal.4th 93, 117.)


In the latter instance, of course, our rejection, on the merits, of a claim that

the trial court erred on the issue actually before that court necessarily leads us to
reject the newly invoked constitutional “gloss” as well. No separate constitutional
discussion is required concerning such claims, and we therefore provide none.

21

case impartially, and that the failure to excuse him violated the Sixth

Amendment’s guarantee of a trial by an impartial jury. Defendant relies upon

federal cases concluding that bias may be implied or presumed from the “potential

for substantial emotional involvement” inherent in certain relationships. (United

States v. Allsup (9th Cir. 1977) 566 F.2d 68, 71 [jurors should have been excused

for cause from serving on case in which the defendant was charged with robbing a

bank that employed them, even though they claimed they could be impartial]; see

also Fields v. Woodford (9th. Cir. 2002) 281 F.3d 96 [evidentiary hearing required

to determine whether juror whose wife had been the victim of a crime quite similar

to the ones charged was biased]; United States v. Eubanks (9th. Cir. 1979) 591

F.2d 513 [juror who had two sons who were serving long prison terms for murder

and robbery committed in an attempt to obtain heroin should have been excused

from serving in case in which the defendant was charged with conspiracy to

possess and distribute heroin].) Even assuming these federal decisions are

otherwise persuasive, we discern on the present record no potential for the type of

“emotional involvement” that these cases found to be grounds for disqualification.

Peter W. did not work in the part of the jail in which defendant was housed. The

circumstance that he knew defendant was incarcerated did not render him unable

to be impartial. (See, e.g., People v. Valdez (2004) 32 Cal.4th 72, 121; People v.

Bradford (1997) 15 Cal.4th 1229, 1336.)4


4

Defendant also contends that the trial court should have excused Peter W.

under former Code of Civil Procedure section 219, which exempted peace
officers, as defined in section 832, subdivision (a), from jury service in criminal
cases. Defendant concedes that Peter W. was not a “peace officer” within the
meaning of Code of Civil Procedure section 219. (See § 831, subd. (a) [a
custodial officer is a public officer, not a peace officer]; see also County of Santa
Clara v. Deputy Sheriffs’ Assn
. (1991) 3 Cal.4th 873.) Nevertheless, he argues
that the statute denies due process and equal protection guarantees of the state and

(footnote continued on next page)

22

Defendant also contends that the trial court abused its discretion in refusing

to grant defendant’s request for an additional peremptory challenge. To support a

claim that he is constitutionally entitled to more peremptory challenges than are

provided by statute, a defendant must establish “at the very least that in the

absence of such additional challenges he is reasonably likely to receive an unfair

trial before a partial jury.” (People v. Bonin, supra, 46 Cal.3d 659, 679; see

People v. Pride (1992) 3 Cal.4th 195, 231 [additional peremptory challenge not

required when the defendant did not demonstrate that the trial court erroneously

denied challenges for cause and none of the allegedly biased prospective jurors

actually served on the jury].) Other than the meritless contention that Peter W.’s

employment at the jail was ground for disqualification, defendant suggests no

reason that an additional peremptory challenge was necessary in order to avoid an

unfair trial. Defense counsel argued that he needed the additional challenge

because the jury panel was tainted by the information that defendant was in

custody, but any such bias could have been addressed through an appropriate

admonition, had one been requested.



4. Denial of challenges based on jurors’ views concerning

the death penalty

Defendant contends that the trial court erred in denying eight challenges to

jurors under Wainwright v. Witt (1985) 469 U.S. 412. “A prospective juror who

would invariably vote either for or against the death penalty because of one or


(footnote continued from previous page)

federal Constitutions by drawing an arbitrary and irrational distinction between
peace officers and jailers. Because defendant did not raise Code of Civil
Procedure section 219 in support of his challenge to Peter W. in the trial court, we
decline to address that argument here.

23

more circumstances likely to be present in the case being tried, without regard to

the strength of aggravating and mitigating circumstances, is . . . subject to

challenge for cause . . . .” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005.) “If

the prospective juror’s statements are conflicting or equivocal, the court’s

determination of the actual state of mind is binding. If the statements are

consistent, the court’s ruling will be upheld if supported by substantial evidence.”

(People v. Horning (2004) 34 Cal.4th 871, 896-897.) Under this deferential

standard of review, we find no error. The trial judge concluded that each of the

prospective jurors at issue (none of whom ultimately served on the jury) would

follow the court’s instructions and consider the relevant circumstances before

making a decision. As we explain below, the trial court’s conclusions are

supported by the record.

a) George C.

George C. initially stated that he was “pretty much noncommittal”

concerning the appropriate penalty and would not favor the defense or the

prosecution. He also stated, however, that he would not give much weight to a

defendant’s background, psychiatric evidence, age, childhood abuse, drug use, or

testimony from family members, as long as the person knew right from wrong.

Although he would not afford such evidence much weight, he would consider it.

And, he stated, he would follow the court’s instructions and, if persuaded by the

evidence, could return a verdict of life imprisonment without possibility of parole.

The trial court properly disallowed the challenge. The court noted that although

the prospective juror was somewhat unwilling to give weight to particular

mitigating factors, he was not asked about other mitigating and aggravating

factors, and the juror’s decision is based on “the final evaluation of all the

circumstances.” The prospective juror never stated he would vote for the death

24

penalty without regard to mitigating evidence, but merely expressed his view that

certain types of evidence were not entitled to much weight in the penalty decision.

b) Glenn H.

Glenn H. stated several times that he definitely would vote for the death

penalty if a deliberate, premeditated murder were proved. On his questionnaire he

indicated that anyone who intentionally kills another person automatically should

receive the death penalty and that he would not be willing to give weight to the

defendant’s background. He stated, however, that if he were instructed that he

must consider other evidence, he would follow the instructions. In that

circumstance, he stated he would not automatically vote for death, but the

mitigating evidence would have to be “very overwhelming” to cause him to

change his opinion. Childhood beatings, alcohol or drug problems, and mental

problems short of insanity would not affect his decision. He said he would

consider other mitigating evidence, including whether the defendant was

dominated by someone else, acted under duress, or was a minor participant in the

crime and, if persuaded, could vote for life imprisonment without possibility of

parole. Defense counsel challenged Glenn H. for cause on the ground that the

only mitigating factors he was willing to consider were ones that were not relevant

to the case. The court properly disallowed the challenge, stating that it believed

the juror would follow the law and would consider both penalties before arriving

at a decision. Despite the personal opinions he asserted at the beginning of voir

dire, this prospective juror stated he would consider the mitigating evidence as

required by the court’s instructions and could vote for life imprisonment without

possibility of parole if persuaded that was the appropriate penalty.

c) James L.

James L. stated that a person who commits a murder should receive the

death penalty and that he would automatically vote for the death penalty if he were

25

convinced that an intentional murder had been committed. He also stated,

however, that this was only his opinion ― he would follow the law, keep an open

mind, and consider both penalties. When questioned by defense counsel, James L.

confirmed that he would automatically vote for the death penalty for an

intentional, coldblooded murder. But after the prosecutor and the court further

explained his obligations under the law, he indicated he would keep an open mind

and would seriously consider both penalties. The trial court properly denied

defense counsel’s challenge for cause. The prospective juror acknowledged that

his initially stated views were only his personal opinion and that he would follow

the law requiring him to consider both penalties.

d) John V.

On his questionnaire, John V. wrote that a person who intentionally killed

someone who had done nothing to harm the killer always should receive the death

penalty. If faced with an intentional killing during a robbery or the killing of a

witness, and there was no other relationship between the killer and the victim, he

believed the death penalty always should be imposed. Information concerning the

defendant’s background would not, he stated, carry much significance. He also

stated, however, that he would follow the law as instructed and keep an open

mind, and if the evidence warranted it he could vote for life imprisonment without

possibility of parole. He felt that he would vote for the death penalty, but

conceded it was possible that upon learning more facts he might change his mind.

The trial court properly disallowed defense counsel’s challenge for cause, stating it

appeared the juror was “ambivalent at the moment and would follow the law and

the evidence as given in the case.”

e) Jean A.

Jean A. believed in the death penalty and doubted that life imprisonment

without possibility of parole truly was carried out. But she did not lean strongly

26

toward the death penalty and thought her ultimate decision would depend on the

case and the circumstances. She considered herself an opinionated person and

stated it would take a lot to sway her — the burden would be on the defense to

convince her of extenuating circumstances. At the penalty stage, she could wait

until she heard all the evidence before making a decision. She explained she

would try to keep an open mind, although she would find it difficult to be fair to

both sides because she has very strong feelings against violence and would find it

difficult to be lenient. She did not believe that anyone who intentionally kills

should be sentenced to death automatically because, she conceded, there might be

extenuating circumstances. She thought she could keep an open mind and listen to

whatever extenuating circumstances were presented at the penalty phase, including

psychological testimony. Defense counsel challenged her for cause. The court

found the challenge to present a close question because Jean A.’s answers

fluctuated, but ultimately concluded the prospective juror would follow the court’s

instructions, and hence the court disallowed the challenge. In view of the

prospective juror’s conflicting responses, we defer to the trial court’s conclusion

that she could follow the law.

f) Gary M.

Gary M. had been the victim of a robbery in 1982, during which the robber

attempted to shoot him. He stated that he had considered whether his being shot at

might be a reason to excuse him from the case, but that he was trained in science

and followed the scientific method; he felt he would be willing to follow the rules

and decide the case in accordance with the evidence. He stated that if the killing

were intentional and committed with a gun, he felt the death penalty should be

automatic, but later clarified that he would have to know the circumstances and

hear the instructions on the law. If the judge told him he was to consider the

defendant’s background and the circumstances of the crime in deciding the

27

appropriate penalty, and to keep an open mind, he would follow those instructions

and put aside his personal beliefs. Defense counsel challenged Gary M. for cause

based upon his stated views regarding the death penalty and the fact that he had

been shot at during a robbery. The court properly disallowed the challenge,

stating that the juror was in “the category of those who would favor the death

penalty but would not impose it in every case.”

g) Harley R.

Harley R.’s brother had been the victim of a robbery in 1984, during which

he was beaten with a gun and sustained serious injuries. When questioned

concerning whether that event would have any effect upon him if he served on the

case, the prospective juror stated he believed he could keep an open mind. He

believed the death penalty always should be imposed if a person murders in order

to cover up a crime and that a person’s background should not carry strong weight

if the person knew right from wrong. Although it would be very difficult to

convince him not to vote for the death penalty, it was possible he could be swayed

and could set aside his personal feelings, follow the law, keep an open mind, and

consider all of the mitigating factors. The court properly disallowed the challenge

for cause, finding that the prospective juror favored the death penalty but would

not vote to impose it in every case.

h) Kathryn R.

Kathryn R. stated she believed a person who deliberately killed should be

put to death, in spite of any background or mitigating evidence that might be

presented. She had a sister whose boyfriend had been beaten to death with a

crowbar during a gas station robbery. She stated that this incident might have an

effect on her because the person who committed the offense was only lightly

punished and she was displeased with that outcome. At one point she stated she

was unsure whether she could set aside her personal views concerning the death

28

penalty. After the law and the procedures were explained to her, however, she

indicated she would want to know the defendant’s background and “would hope”

she could keep an open mind and listen to all the evidence. She could vote for life

imprisonment without the possibility of parole “if it was really strong evidence.”

She explained she did not believe drug and alcohol use would constitute such

evidence, but a brutal childhood might hold more weight. It would be difficult

but she would attempt to put aside her personal feelings concerning the death

penalty. Defense counsel challenged her for cause, but the trial court properly

disallowed the challenge. Although her answers were equivocal, the trial court did

not abuse its discretion in concluding she would be willing to follow the law and

consider both possible penalties.

5. Implied bias

Defendant additionally contends that the trial court erred in denying

challenges for cause to four prospective jurors ― three of those discussed above

(Gary M., Harley R., and Kathryn R.) and a fourth, Gary Mc.5 — based on their

asserted “implied bias.” Gary M. had been the victim of a robbery and shooting.

Harley R.’s brother had been the victim of a robbery, during which the brother was

seriously injured. Kathryn R.’s sister had a boyfriend who was beaten to death

during a gas station robbery. Gary Mc. had two friends in law enforcement who

were killed on the job. We apply the same standard of review to challenges for

cause based upon a prospective juror’s bias as we do to challenges based on the

juror’s views concerning the death penalty. “If the prospective juror’s statements

5

Defendant also asserts that juror Gary Mc. should have been excused under

Wainwright v. Witt, supra, 469 U.S. 412, but defendant did not challenge
Gary Mc. in the trial court on the basis of his views concerning the death penalty,
and defendant provides no justification for this claim other than the fact that
Gary Mc. had two friends in law enforcement who were murdered on the job.

29

are conflicting or equivocal, the court’s determination of the actual state of mind is

binding. If the statements are consistent, the court’s ruling will be upheld if

supported by substantial evidence.” (People v. Horning, supra, 34 Cal.4th at

pp. 896-897.)

Jurors Gary M., Harley R., and Kathryn R. were challenged during the

Hovey voir dire, and all of the circumstances indicate that the challenges were

based upon their views concerning the death penalty ― including the impact of

their personal experiences on those views ― and not on any alleged inability to be

impartial regarding guilt or innocence. Thus, the challenges to these jurors have

been fully addressed above.

Defense counsel did challenge Gary Mc. for cause based upon his

relationship with law enforcement. Gary Mc. had been a deputy sheriff. He had

been the victim of a violent assault when he worked as a park ranger and had two

friends in law enforcement who had been murdered. He stated he did not believe

that experience would have any effect upon his ability to consider fairly the

appropriate penalty in this case. During the general voir dire, when defense

counsel questioned him extensively about his relationship with law enforcement

and whether he could be fair if questions were raised regarding the credibility or

performance of a police officer, Gary Mc. insisted he would maintain an open

mind. He stated he could be impartial and listen to the testimony of all witnesses

fairly and would not be prejudiced for or against any officer. This record supports

the trial court’s conclusion that Gary Mc. could be a fair juror. 6

6

Defendant also contends the trial court should have excused Gary Mc. on

the ground he was a “peace officer” and was therefore ineligible to serve under
Code of Civil Procedure section 219. Defendant failed to raise this objection at
trial, but in any event the record does not support his assertion. Gary Mc. was a
reserve deputy sheriff. As such, he had the powers of a peace officer only when

(footnote continued on next page)

30

As he did in relation to the challenge to juror Peter W., discussed above,

defendant argues that bias should be presumed on the basis of these jurors’

experiences with violent crime, relying upon federal cases concluding that bias

may be implied or presumed from the “potential for substantial emotional

involvement” inherent in certain relationships. (See, e.g., United States v. Allsup,

supra, 566 F.2d at p. 71; see also Fields v. Woodford, supra, 281 F.3d 96; United

States v. Eubanks, supra, 591 F.2d 513.) Even assuming, as discussed above, that

such decisions are persuasive, these four potential jurors’ experiences with violent

crime were unconnected to the present case and were not sufficiently similar to

create the type of “emotional involvement” that these cases viewed as a ground for

disqualification.

6. Exclusion of jurors from guilt phase under Witt

Defendant argues he was deprived of due process by the exclusion of jurors

from the guilt phase of his trial because of their stated inability to impose the death

penalty. He invites us to reconsider our contrary conclusion in People v. Fields

(1983) 35 Cal.3d 329. We continue to adhere to that decision, in which we held

that the exclusion of jurors who could not consider imposing the death penalty

from serving on the guilt phase of a capital trial was justified by the “interest of

the state in maintaining a unitary jury for both phases of the trial.” (Id. at p. 353;

see People v. Wader (1993) 5 Cal.4th 610.)

7. Batson-Wheeler issues

Defendant contends the prosecutor employed peremptory challenges to

excuse Hispanic jurors on the basis of race, in violation of his state and federal

(footnote continued from previous page)

specifically assigned to duty. (§ 832.6). The record does not establish that
Gary Mc. had the powers of a peace officer at the time of defendant’s trial.

31

constitutional rights. (See People v. Wheeler (1978) 22 Cal.3d 258; Batson v.

Kentucky (1986) 476 U.S. 79.) After the prosecutor employed one of his few

remaining peremptory challenges to excuse a Hispanic-surnamed juror, defense

counsel objected on the ground the prosecutor was exercising peremptory

challenges on the basis of race. After asking for and receiving the prosecutor’s

explanation for excusing that juror and four other Hispanic jurors, the trial court

ruled that each reason given by the prosecutor was sufficient.

Defendant contends the trial court erred in so concluding and that the

prosecutor’s reasons for excusing Prospective Jurors Norma R., Jimmy B.,

Frank F., and Irene H. were contrived. The United States Supreme Court recently

reiterated the applicable legal standards. “First, the defendant must make out a

prima facie case ‘by showing that the totality of the relevant facts gives rise to an

inference of discriminatory purpose.’ [Citations.] Second, once the defendant has

made out a prima facie case, the ‘burden shifts to the State to explain adequately

the racial exclusion’ by offering permissible race-neutral justifications for the

strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial

court must then decide . . . whether the opponent of the strike has proved

purposeful racial discrimination.’ ” (Johnson v. California (2005) ___ U.S. ___,

___ [125 S.Ct. 2410, 2416, fn. omitted].) This court gives “great deference to the

trial court in distinguishing bona fide reasons from sham excuses.” (People v.

Turner (1994) 8 Cal.4th 137, 165.) As explained below, the record supports the

trial court’s conclusions that each of the jurors at issue was excused for valid,

race-neutral reasons.

a) Norma R.

The prosecutor explained that, among other reasons, he excused Norma R.

because she did not know whether she could vote for the death penalty. Although

she stated generally that she supported the death penalty for someone who kills

32

intentionally, she repeatedly expressed uncertainty whether she actually could cast

a vote for that punishment as a juror. The prosecutor questioned her intensively

on this subject, as did defense counsel. Ultimately, she stated she thought she

could make the decision, and the trial court denied the prosecutor’s challenge for

cause. The record amply supports the trial court’s conclusion that the prosecutor

had an acceptable, race-neutral reason for excusing this juror. A juror’s reluctance

to impose the death penalty, even if insufficient to justify a challenge for cause, is

a valid reason for a prosecutor to exercise a peremptory challenge. (See People v.

Johnson (1989) 47 Cal.3d 1194, 1222.)

b) Frank F.

Similarly, the prosecutor explained that he excused Frank F. because he

indicated that the prospective juror would impose the death penalty only for

multiple murders. Although he stated he could vote for the death penalty if he

were convinced it was appropriate, Frank F. asserted several times that he would

impose that punishment only if it were shown that the perpetrator enjoyed killing

and killed repeatedly. The prosecutor noted that when asked a question calling for

a yes-or-no answer, Frank F. stated he could vote to impose a death sentence, but

that whenever he was asked a question calling for him to express his own views he

indicated he would expect facts showing multiple murders, or someone who

enjoyed killing, before he could vote to impose a death sentence. In addition, he

described his feelings concerning the death penalty in general as neutral, and

expressed the opinion that life imprisonment without possibility of parole was the

harsher sentence. The prosecutor’s stated reason was valid. (See People v.

Johnson, supra, 47 Cal.3d at p. 1222.)

c) Jimmy B.

Jimmy B. had been convicted of brandishing a weapon and of driving under

the influence. The prosecutor explained that Jimmy B. had suffered the second

33

highest number of convictions of any potential juror, and the prosecutor also had

excused the one prospective juror who had more convictions. Jimmy B. also had

several family members who were heroin addicts and a brother who was confined

in prison. He checked a questionnaire box indicating he was “very liberal”; he had

not given much thought to the death penalty; and at one point he indicated he

would require a showing of multiple murders before imposing the death penalty.

These reasons are adequate, particularly when viewed in combination. “[A] party

may decide to excuse a prospective juror for a variety of reasons, finding no single

characteristic dispositive.” (People v. Gray (2005) 37 Cal.4th 168, 189.)

d) Irene H.

The prosecutor stated he lacked confidence in Irene H. He felt she was not

very bright, and he was concerned about discrepancies between some of her

questionnaire answers and responses she gave during oral voir dire. In the

prosecutor’s opinion, the prospective juror also appeared to be predisposed toward

defense counsel. The prosecutor believed Irene H. might have been an acceptable

juror under some circumstances, but she was not a leader, and at the time he

excused her the group appeared to be lacking in leadership. We recognized the

validity of this type of strategic decision in People v. Johnson, supra, 47 Cal.3d at

page 1220: “If the panel as seated appears to contain a sufficient number of jurors

who appear strong-willed and favorable to a lawyer’s position, the lawyer might

be satisfied with a jury that includes one or more passive or timid appearing jurors.

However, if one or more of the supposed favorable or strong jurors is excused

either for cause or peremptory challenge and the replacement jurors appear to be

passive or timid types, it would not be unusual or unreasonable for the lawyer to

peremptorily challenge one of these apparently less favorable jurors even though

other similar types remain.”

34

Defendant contends the trial court erred by applying the standards set out in

People v. Johnson, supra, 47 Cal.3d 1194, and by not comparing the responses of

the jurors not stricken by the prosecutor with those of the Hispanic jurors he did

strike, in evaluating the good faith of the prosecutor. Defendant did not request

that the trial court engage in such an analysis, but argues that we should do so on

appeal. In Johnson, we held that a reviewing court is not required to engage in a

comparative analysis of jurors. Assuming without deciding that the United States

Supreme Court’s decision in Miller-El v. Dretke (2005) ___ U.S. ___ [125 S.Ct.

2317] (Miller-El) requires us to perform an analysis comparing jurors the

prosecutor excused with those he or she did not excuse, we conclude that the

comparative analysis relied upon by defendant fails to demonstrate purposeful

discrimination.

In Miller-El, the high court stated that “[i]f a prosecutor’s proffered reason

for striking a black panelist applies just as well to an otherwise-similar nonblack

who is permitted to serve, that is evidence tending to prove purposeful

discrimination to be considered at Batson’s third step.” (Miller-El, supra, ___U.S.

at p. ___ [125 S.Ct. at p. 2325].) That analysis does not provide a basis to doubt

the trial court’s findings in the present case, however, because the examples of

“comparative” jurors cited by defendant are not truly comparable to those whom

the prosecutor excused. For example, the circumstance that the prosecutor did not

strike some jurors who had received traffic citations for speeding does not call into

question the validity of his explanation that he excused Jimmy B. because that

prospective juror had convictions for brandishing a weapon and driving under the

influence (which was only one of several reasons given by the prosecutor).

Defendant contends the procedures employed by the trial court were

improper in that the court ruled one at a time on the propriety of each of the

prosecutor’s reasons for excusing the prospective jurors, rather than ruling on the

35

basis of the totality of the circumstances after all of the explanations had been

given. Defendant complains that this procedure deprived defense counsel of the

opportunity to argue, based on all of the circumstances, that the prosecutor was

discriminating against Hispanics, and that the trial court did not make a

meaningful and sincere determination concerning the prosecutor’s intent.7 Even if

it might have been better practice for the trial court to withhold its ruling until

hearing all of the prosecutor’s reasons, we find no basis for concluding that its

ruling might have been different had it done so. The trial court did not deny

defense counsel the opportunity to argue, and defendant does not point to any

circumstances in the record that would support the conclusion that the prosecutor

was discriminating unlawfully in his use of peremptory challenges despite the

apparently valid, race-neutral reasons he provided.

8. Prosecutor’s conduct

Defendant contends the prosecutor engaged in a continual pattern of

misconduct during the voir dire proceedings, violating defendant’s right to a fair


7

Defendant also complains that the trial court improperly suggested a race-

neutral reason for the prosecutor’s decision to strike Judy P. Before the prosecutor
gave his reason, the trial court volunteered that the prospective juror was a
“borderline case,” the same expression the court had used in denying the
prosecutor’s challenge for cause against her based upon her views concerning the
death penalty. Although it is not the trial court’s role to supply reasons to the
prosecutor, in this case the trial court merely stated the obvious. The views
expressed by Judy P. during voir dire made it clear that the prosecutor would not
find her an acceptable juror. Indeed, defendant does not even attempt to argue on
appeal that the prosecutor lacked a valid, race-neutral reason for excluding her.
Under these circumstances, we find no merit in defendant’s contentions that the
trial judge’s comment violated its duty to fairly and impartially consider the
validity and sincerity of the prosecutor’s proffered reasons and that the court
influenced the prosecutor to provide similar, but sham, reasons for excusing other
jurors.

36

trial under the state and federal Constitutions. In essence, he complains that the

prosecutor accused defense counsel of misconduct in the presence and hearing of

prospective jurors, leading to frequent heated exchanges and reciprocal

accusations between the two attorneys. For example, the prosecutor complained

that defense counsel was interrupting him and engaging in distracting conversation

at the counsel table, stated that defense counsel’s answer to a juror’s question was

incorrect and unfair, and accused defense counsel of “grandstanding.”

Defendant did not object to most of the prosecutor’s comments, and to that

extent the claim is forfeited. In any event, the contention is without merit. A

prosecutor’s conduct violates the Constitution only when it is “ ‘ “so egregious

that it infects the trial with such unfairness as to make the conviction a denial of

due process.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v.

Espinoza (1992) 3 Cal.4th 806, 820.) Conduct that does not rise to the level of a

constitutional violation will constitute prosecutorial misconduct under state law

only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to

persuade either the court or the jury.” ’ ” (Espinoza, supra, 3 Cal.4th at p. 820.)

In the present case, both counsel engaged in a pattern of aggressive advocacy and

mutual expressions of antagonism, which caused the trial court to admonish them

frequently. Although the prosecutor at times might have conducted himself in a

more restrained manner, we do not find that any of these incidents, considered

singly or in combination, amount to prejudicial misconduct.

Defendant did object and requested a mistrial when the prosecutor asked

Prospective Juror Peter W., who worked at the county jail, whether he ever had

seen defendant there. The trial court sustained the objection and directed the

prosecutor not to pursue that line of questioning. Defendant contends the

prosecutor’s voir dire of Peter W. deliberately was designed to inform other jurors

that defendant was in custody and thereby undermine the presumption of

37

innocence. We find no misconduct. Whether Peter W. had contact with defendant

was a legitimate subject of inquiry on voir dire. As we have observed, “the mere

fact that the jury is made aware of a defendant’s custodial status does not deprive

the defendant of his constitutional rights.” (People v. Valdez, supra, 32 Cal.4th

72, 121.) “[I]n certain circumstances a jury inevitably will learn a defendant is in

custody for the current charged offense, for example where the jury is presented

with the testimony of a jailhouse informant.” (People v. Bradford, supra, 15

Cal.4th 1229, 1336 [prosecutor did not commit misconduct in eliciting responses

from a witness about her continuing contacts with the defendant, from which the

jury could have inferred he was in custody].) Furthermore, the trial court

sustained defendant’s objections, and defendant did not request the court to

admonish the jury to ignore the fact that defendant was in custody.

C. Use of Material from Defendant’s First Trial

1. Testimony that defendant had been on death row

Defendant contends the trial court erred in failing to declare a mistrial after

a prosecution witness, during cross-examination, mentioned that defendant had

been on death row. When defense counsel was questioning Jona Cardona about

conversations she testified she had with defendant, she stated, “He called me when

he was on death row.” Although the witness’s statement did not reveal to the jury

that defendant had been on death row as a result of prior proceedings in this same

case, defense counsel subsequently revealed that circumstance. Counsel asked the

witness, “Did you not learn that Mr. Ledesma was previously convicted and went

to death row in this case because he was incompetently represented, that his

attorney was on drugs and gambling during the trial, and because of that the

Supreme Court ruled that he had an unfair trial and that’s why we are back

today?” The witness replied that she did not know, although she might have read

about it in the papers. Counsel further asked, “And you learned, did you not, that

38

he had gone to death row or been sentenced because he had an attorney who did

no investigation, put on a false defense to the court, himself, was on PCP and other

drugs during trial, and was addicted to gambling . . . .” The prosecutor objected to

that question, and the court sustained the objection. When questioning resumed,

defense counsel referred once again to calls that defendant had made to the

witness “during those many years that he sat on death row.”

A few minutes later, outside the presence of the jury, defense counsel

moved for a mistrial. He argued the prosecutor was responsible for the witness

and should have told her in advance not to mention defendant’s having been on

death row. Once that information was revealed, defense counsel tried to minimize

the prejudice by trying to explain the reason for the new trial, but was stopped by

the court when it sustained the prosecutor’s objection. Defense counsel argued

that no admonition the court could give would erase this from the minds of the

jurors. The prosecutor explained that he did admonish this witness not to mention

the previous trial.

The trial court denied the motion for mistrial, noting that it was defense

counsel’s question that indicated that the defendant was on death row as a result of

prior proceedings in this same case. Defense counsel made a strategic decision to

avoid juror speculation concerning whether defendant had committed another

murder and to attempt to mitigate the damaging effects of this information by

explaining to the jury that defendant previously had been convicted of the same

offense for which he now was being tried but that he had not had an adequate

defense at his previous trial.

Although objections had been sustained to counsel’s questions to Cardona

about the prior trial, it was subsequently made clear through other witnesses that

defendant’s prior trial was for the same offense and that prior defense counsel had

not conducted a thorough defense. For example, when the prosecution attempted

39

to impeach defense witnesses who testified about defendant’s drug use on the

grounds that they had not mentioned the subject in the prior trial, defense counsel

brought out the circumstance that the prior defense attorney had not questioned

them on the subject. One of the defense experts, Dr. Evans, testified that prior

defense counsel did not have psychological tests of defendant performed.

Prosecution witness Dr. Glathe testified under cross-examination that he had

performed only the brief examination of defendant that prior defense counsel had

asked him to perform, and that the results of tests that had been performed

subsequently would have been helpful in assessing defendant.

The issue here is whether the witness’s comment was so incurably

prejudicial that a new trial was required. “A mistrial should be granted if the court

is apprised of prejudice that it judges incurable by admonition or instruction.

[Citation.] Whether a particular incident is incurably prejudicial is by its nature a

speculative matter, and the trial court is vested with considerable discretion in

ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) A

witness’s volunteered statement can, under some circumstances, provide the basis

for a finding of incurable prejudice. (See People v. Wharton (1991) 53 Cal.3d

522, 565 [motion for mistrial properly was denied because court’s admonition and

witness’s later testimony under cross-examination dispelled prejudice]; People v.

Rhinehart (1973) 9 Cal.3d 139, 152 [witness’s inadvertent answer was

insufficiently prejudicial to justify a mistrial].) But we do not presume that

knowledge that a defendant previously has been convicted and is being retried is

incurably prejudicial. (See People v. Anderson (1990) 52 Cal.3d 453, 468 [claim

that trial court improperly disclosed to jury that the defendant previously had been

sentenced to death for the same offense was waived by counsel’s tactical failure to

object, and was not prejudicial].)

40

In the present case, the length of time between the crime and the trial and

the numerous unavoidable references to witnesses’ prior statements created a high

risk that the jury would become aware that defendant had been tried previously.

As the high court has recognized, “it is virtually impossible to shield jurors from

every contact or influence that might theoretically affect their vote.” (Smith v.

Phillips (1982) 455 U.S. 209, 217 [verdict did not deny due process, even though

one juror had applied for employment with the prosecutor’s office during the trial,

absent showing of actual bias].) We find no basis for concluding, on the present

record, that the knowledge that defendant previously had been convicted of

murder and sentenced to death was incurably prejudicial.

Furthermore, defense counsel made a strategic decision to inform the jury

that defendant previously had been convicted of the same offense, rather than a

different crime, and that his conviction was reversed because of the inadequate

defense provided by his attorney. Counsel’s approach appears to be an

appropriate attempt to minimize damage and speculation, particularly in light of

the circumstance that the jury inevitably would learn that defendant had been on

death row if the case went to a penalty phase.8

8

On the present record, we cannot conclude that defense counsel’s decision

to proceed in this manner was unreasonable, and we therefore reject defendant’s
claim that his attorney rendered constitutionally ineffective assistance in choosing
this strategy rather than immediately requesting that the jury be admonished to
ignore the comment. (See Strickland v. Washington (1984) 466 U.S. 668, 688.)
Whether it was preferable to leave the jury to speculate that defendant had been
convicted and was under a death sentence for another murder the jury knew
nothing about, or instead permit the jury to become aware of the circumstances
that led to his being retried and rely upon the jurors to do their duty and decide the
case solely on the evidence before them, is a matter upon which reasonable
counsel might differ. Under such circumstances, we decline to second-guess the
strategic decisions of defense counsel. (See Ledesma I, supra, 43 Cal.3d at
p. 216.)

41

Defendant argues that the jury’s knowledge that the first jury had convicted

him for the same offense was prejudicial not only because it may have influenced

the jury’s verdict directly, but also because it enhanced the credibility of

prosecution witnesses Michael Shay, Floyd Cowdell, and Syvlia Ontiveros, who

had testified at the first trial and whose testimony apparently had been accepted by

the first jury. The jury was given the standard instruction, “You must decide all

questions of fact in this case from the evidence received in this trial and not from

any other source.” We presume the jury followed that instruction.9 There is no

reason to believe that the jurors, who observed each of these witnesses, felt

compelled to ignore the court’s instruction and defer to the judgment of a different

jury that resulted from a different trial. Under these circumstances, we conclude

that the witness’s comment did not require a mistrial.10


9

During the presentation of the evidence, defense counsel asked the court to

instruct that jury that defendant’s prior conviction had been reversed because of
the ineffective assistance provided by his counsel, but the court declined,
commenting, “If they are not aware of it by this time they must have been asleep.”
At the penalty phase, the court specifically instructed the jury that defendant was
being retried as the result of the decision by this court that his previous trial was
unfair, and that the jury was to “disregard completely the result of that first trial in
deciding upon a verdict in the present trial.” No similar instruction was requested
at the guilt phase.
10

Defendant additionally contends his counsel rendered constitutionally

ineffective assistance in failing to seek a protective order to preclude Jona Cardona
and other witnesses from informing that jury that defendant had been on death
row. Defendant has not established that the result at his trial would have been
different had such an order been obtained. The prosecutor stated that he
admonished the witness not to bring up the first trial, and nothing in the record
suggests she did so intentionally.

42



2. Defendant’s prior testimony

Defendant contends the trial court erred in refusing to grant a mistrial after

the prosecutor referred to defendant’s false testimony at his first trial during cross-

examination of defense witnesses. Testifying at his first trial, defendant denied

committing the robbery or murder, claiming that on the day of the gas station

robbery he had loaned his motorcycle to two friends, who later told him they had

committed the robbery. At the retrial, the prosecutor asked defense expert

Dr. Evans whether she had reviewed defendant’s prior testimony. When defense

counsel objected, the court asked the prosecutor, in the presence of the jury,

whether he would be getting into the defendant’s testimony. At that point, the

court conducted a bench conference and directed the prosecutor not to pursue that

line of questioning.

Subsequently, the prosecutor asked defense witness Dr. Rosenthal whether

defendant had admitted to him that he previously lied in court about this matter.

Dr. Rosenthal did not directly answer but instead attempted to clarify the question.

After the court overruled defense counsel’s objection, the prosecutor asked

whether Dr. Rosenthal was comfortable relying upon information provided by a

man who admitted that he lied in court. The court sustained defense counsel’s

objection.

Thereafter, defense counsel moved for a mistrial on the grounds that the

prosecutor’s question denied defendant a fair trial and violated the trial court’s

prior ruling (in the context of the examination of Dr. Evans) that defendant’s prior

testimony was inadmissible. The prosecutor argued that the question was based on

Dr. Rosenthal’s notes, which indicated that defendant told him he had lied at the

first trial. The court denied defendant’s motion for mistrial, concluding there was

no misconduct by the prosecutor and no prejudice.

43

Defendant contends his testimony at his first trial was inadmissible at his

second trial because it was a direct result of the ineffectiveness of his first

attorney. (See People v. Karlin (1964) 231 Cal.App.2d 227, 232 [trial court erred

in admitting at trial a confession the defendant made at his preliminary hearing,

because his attorney had a conflict of interest that prevented her from providing

effective assistance and the defendant’s testimony at the preliminary hearing “was

the product of the failure to honor his constitutional right to adequate legal

representation”].) In our prior opinion, we upheld the referee’s conclusion that

Attorney Parrish “took an active part in the decision to use, and in preparation of,

the alibi defense.” (Ledesma I, supra, 43 Cal.3d at p. 221.) The decision to

present the false alibi derived from Parrish’s ineffective assistance in failing to

undertake adequate investigation and research, especially with regard to the issue

of diminished capacity.

We need not decide whether or not the prosecutor’s reference to

defendant’s prior testimony was a proper means of impeaching the defense’s

expert witnesses because, even assuming for the purposes of discussion that it was

not, defendant has not shown that the prosecutor’s questions caused prejudice that

was “incurable by admonition or instruction.” (People v. Haskett, supra, 30

Cal.3d at p. 854.) As noted earlier, “[w]hether a particular incident is incurably

prejudicial is by its nature a speculative matter, and the trial court is vested with

considerable discretion in ruling on mistrial motions.” (Ibid.)

Defendant’s objections were sustained by the trial court, and neither

witness answered the questions. The jury did not hear specific evidence about

what defendant said in his prior testimony. Defense counsel did not request the

court to admonish the jury to ignore the question and, in any event, the jury was

instructed that questions are not evidence. Furthermore, because defendant did not

testify at the second trial, the defense case did not rest upon his credibility. The

44

jury heard other evidence that suggested defendant was not always truthful;

indeed, the defense theory was that he made numerous false admissions about his

participation in the crime. Under these circumstances, we cannot conclude that the

prosecutor’s brief reference to defendant’s lying in his prior testimony was so

prejudicial as to require a mistrial.11

3. Use of prior testimony to impeach defense witnesses

Defendant contends the prosecutor improperly was permitted to impeach

defense witnesses Adelita Jordon, Pasqual Ledesma, and Ruben Gomez with their

testimony at the previous trial. Defendant asserts the prosecutor’s ability to

impeach these witnesses is attributable to Attorney Parrish’s ineffective assistance.

In Ledesma I, this court concluded that Attorney Parrish had failed to investigate

adequately a diminished capacity defense based upon defendant’s drug use.

(Ledesma I, supra, 43 Cal.3d at p. 223.) As a result of this failure, the witnesses

did not testify at the first trial concerning defendant’s drug use. Subsequently at

the retrial, the prosecutor was able to use these (and other) omissions and

inconsistencies between their earlier testimony and their current testimony to

imply that their current testimony was fabricated.

Defendant cites no authority establishing an absolute bar to the

prosecution’s use of testimony from a previous trial at which the defendant

received ineffective assistance of counsel. Rather, decisions that have addressed


11

Defendant also asserts the trial court erred in ruling that his prior testimony

could be admitted for impeachment purposes if he testified in a manner
inconsistent with that prior testimony, and that this error denied him his rights to
effective assistance of counsel and to testify in his own defense under the Fifth,
Sixth, and Fourteenth Amendments and article I, sections 7 and 15 of the
California Constitution. The record demonstrates, however, that no such ruling
was made with respect to the guilt phase of the trial.

45

such issues have examined the circumstances surrounding the prior testimony and

how it was used in the subsequent trial, to determine whether the evidence at issue

is attributable to counsel’s ineffective assistance and whether its use denied the

defendant a fair trial in the subsequent proceeding. (See, e.g., People v. Sixto

(1993) 17 Cal.App.4th 374 [upholding trial court’s denial of motion for certain

findings and for exclusion of evidence as means of curing effect of ineffective

assistance of counsel at prior trial]; People v. Karlin, supra, 231 Cal.App.2d 227

[the defendant’s admissions made at preliminary hearing, when his attorney had a

conflict of interest, could not be used at his subsequent trial]; see also Ibn-Thomas

v. United States (D.C. 1979) 407 A.2d 626 [the defendant’s testimony at first trial,

after which a mistrial was declared due to ineffective assistance of counsel, could

be used at second trial only for impeachment purposes]; People v. Duncan

(Ill.App.Ct. 1988) 527 N.E.2d 1060, 1062 [because ineffective assistance of

counsel “colored the entire proceeding,” the defendant’s testimony at first trial

could not be used in second trial except for purposes of impeachment].)

Even if the failure of these witnesses to testify at the first trial concerning

defendant’s drug use may be attributed to prior counsel’s ineffective assistance,

we do not find that the use of their prior testimony for impeachment purposes

denied defendant a fair trial. Defense counsel had a full opportunity to rehabilitate

these witnesses and to permit them to explain discrepancies between their prior

testimony and their subsequent testimony. Adelita Jordon testified for the defense

that after she and defendant separated, he began using PCP and there was a

substantial change in his behavior. She remembered that when she served him

with marital dissolution papers, he was very shaky and did not make sense. The

prosecutor cross-examined her regarding her prior testimony that when defendant

came to visit her and her daughters he was polite and pleasant, that she did not

recall whether defendant appeared to be under the influence of drugs at the time

46

she served him, and that he appeared to be “straight” on other occasions when she

saw him at her mother’s house. When asked about these discrepancies, she said

she had been nervous at the prior trial. On redirect examination, she testified that

at the previous trial defense counsel did not ask her anything about defendant

using drugs and he did not ask her whether he was acting strange.

The prosecutor questioned witness Ruben Gomez concerning why he had

not mentioned in his previous testimony that Jona Cardona told him in 1979 that

she heard defendant did not commit the murder and that someone named “Crazy

Joe” had done so. On redirect examination, Gomez testified that at the first trial

defendant’s lawyer asked Gomez only a few questions concerning whether

defendant was a nice person and did not ask him about drug use. Gomez also

explained that he had heard many rumors concerning whether defendant had

committed the crime, and that the conversation with Jona Cardona stood out in his

mind only because she now had become a witness in the case and had testified

differently from what she told him back in 1979. Furthermore, Gomez testified,

he mentioned the conversation as soon as defense counsel told him she was a

witness.

Defendant’s brother Pasqual Ledesma testified he never had seen defendant

use drugs but he had observed him acting as if he were in a daze, out of contact

with reality, and in a state in which he just was not himself. The prosecutor cross-

examined defendant’s brother concerning his prior testimony, in which he stated

he had not seen defendant under the influence of drugs but had only heard rumors

about his drug use. Pasqual responded that, not being an expert in such matters, he

did not necessarily know whether his brother was under the influence of drugs and

that he had not been asked at the prior trial whether his brother seemed to be out of

contact with reality. On redirect examination, Pasqual further testified that since

47

defendant’s first trial, Pasqual had learned more about drug use and had thought

more about his brother’s behavior.

As demonstrated above, each of these witnesses was able to provide

plausible explanations for omissions from their testimony at the first trial,

including prior defense counsel’s failure to develop the issue. Under these

circumstances, prior counsel’s ineffective assistance did not deny defendant a fair

retrial.

D. Testimony of Dr. Glathe

1. Privileges

Defendant contends the admission of the testimony of psychiatrist

Dr. John P. Glathe regarding statements made to him by defendant violated the

attorney-client and psychotherapist-patient privileges and defendant’s Sixth

Amendment right to counsel. Prior to defendant’s first trial, the court appointed

Dr. Glathe at the request of defense counsel. The appointment was made under

Evidence Code section 1017, which provides that the psychotherapist-patient

privilege applies when the psychotherapist is appointed by the court to advise the

defendant’s lawyer regarding defendant’s emotional or mental condition for the

purpose of determining whether to raise insanity or some other mental defense.

(See Ledesma I, supra, 43 Cal.3d at p. 179.) No type of mental defense was

presented at defendant’s first trial, and Dr. Glathe did not testify at that trial.

(Ibid.)

In the subsequent habeas corpus proceeding, one of the claims made by

defendant was that his trial attorney, Mr. Parrish, failed to research adequately the

facts and the law regarding the availability of a diminished capacity defense. The

referee who conducted the habeas corpus hearing ordered defendant, over his

objection, to provide to the prosecution Dr. Glathe’s report and notes. At the

hearing on the habeas corpus petition, the prosecution called Dr. Glathe as a

48

witness, and his report was admitted into evidence. (Ledesma I, supra, 43 Cal.3d

at p. 194, fn. 5.) The report does not mention any confession by defendant, but Dr.

Glathe testified at the hearing that defendant told him he had committed the

charged offenses. (Id. at p. 205.)

One of the defense experts, Dr. Evans, testified at the present trial that she

had read portions of the transcripts of the hearing in the habeas corpus proceeding

as well as this court’s decision in Ledesma I. That decision quotes the full text of

Dr. Glathe’s report and includes a summary of Dr. Glathe’s testimony at the

habeas corpus hearing that references defendant’s confession. (Ledesma I, supra,

43 Cal.3d at p. 194, fn. 5, & p. 205.) During cross-examination, the prosecutor

asked Dr. Evans — without objection — whether she was aware that defendant

had confessed to Dr. Glathe. She testified that she was, but that defendant told her

he was innocent. She commented further that Dr. Glathe had not performed any

psychological tests and that the information he had was inadequate.

Another defense expert, Dr. Clark, also had read this court’s decision in

Ledesma I. When the prosecutor attempted to cross-examine him concerning his

awareness of defendant’s confession to Dr. Glathe, defense counsel objected,

arguing that defendant’s statements to Dr. Glathe were privileged. Defense

counsel objected to any reference to Dr. Glathe’s report, on the grounds that

defendant’s statements to him were protected by the attorney-client and

psychotherapist-patient privileges, and that the prosecution should not be able to

benefit from any evidence produced at the habeas corpus hearing, because it was

produced as a consequence of the ineffective representation provided by Attorney

Parrish at the first trial. The trial court ruled that the prosecutor could question the

experts concerning their awareness of defendant’s statements to Dr. Glathe, and

49

could ask them hypothetical questions regarding the confession, but that the

statements could not be considered for their truth unless Dr. Glathe testified.12

Subsequently, defense counsel asked defense expert Dr. Rosenthal whether,

if defendant had made a confession to a doctor, such a statement might be an

example of his bragging or attempting to bolster himself. Dr. Rosenthal testified

that it might be, and that making a shocking claim could be a way for defendant to

accord himself a sense of power in a relationship with a person in authority.

Defense counsel questioned Dr. Rosenthal concerning the statement in Dr.

Glathe’s report that defendant had exhibited an inappropriately “macho” affect.

Dr. Rosenthal had read Dr. Glathe’s report, and had testified about it at the habeas

corpus hearing in 1985. In Dr. Rosenthal’s opinion, Dr. Glathe’s statement in the

report that defendant probably was sane at the time of the crime was an indication

that more work needed to be done before a conclusion could be reached on that

issue.

The prosecutor called Dr. Glathe to testify in rebuttal. The trial court heard

further argument and ruled that his testimony was admissible. Dr. Glathe,

consulting his notes from his one-hour interview with defendant in October of

1979, testified that defendant told him that at the time of the offense, he had been

laid off from work and had broken up with his girlfriend. According to Dr.

Glathe, defendant told him that he “got the notion” to commit an armed robbery.

He robbed a gas station attendant of $60.00 and used the money to purchase the

drug PCP. He warned the victim he would kill him if he reported the crime.

Thereafter he received an anonymous phone call informing him that the police


12

Dr. Clark testified subsequently that he did not rely on Dr. Glathe’s report

in forming his opinions, and the prosecutor was not permitted to question him
further on that subject.

50

were looking for him. Dr. Glathe recounted defendant’s assertions that he had not

covered the license plate on his motorcycle and that one week after the robbery, he

went back to the gas station and kidnapped the victim, took him to Watsonville,

shot him in the head, back, and chest, and stabbed him. Dr. Glathe also testified

that defendant stated, “If I get the death penalty, I get it, I will hang myself first

rather than give them the pleasure.”

At the time defendant made his statements to Dr. Glathe, they were

protected by the psychotherapist-patient privilege. (Evid. Code, § 1017; People v.

Clark, supra, 50 Cal.3d 583, 621.) But under the patient-litigant exception, the

psychotherapist-patent privilege was lost when defendant put his mental and

emotional state in issue at trial. (Evid. Code, § 1016.)

Because Dr. Glathe conducted a confidential interview of defendant for the

purpose of assisting defense counsel in the preparation and presentation of a

defense, defendant’s statements to Dr. Glathe also were protected by the attorney-

client privilege unless that privilege was waived or an exception applied. (People

v. Lines (1975) 13 Cal.3d 500, 510.) There is no client-litigant exception to the

attorney-client privilege that is comparable to the patient-litigant exception to the

psychotherapist-patient privilege. (Id. at p. 514; Evid. Code, § 1016.) The

attorney-client privilege continues to protect a defendant’s statements to a defense

psychiatrist even if the defendant tenders a mental defense. (Lines, supra, 13

Cal.3d at p. 514.)

The Attorney General argues that Dr. Glathe’s testimony nevertheless was

admissible because defendant waived all privileges when, in the habeas corpus

proceeding, defendant claimed that his trial counsel provided ineffective assistance

in failing to investigate and present a diminished capacity defense. (See In re

Gray (1981) 123 Cal.App.3d 614, 615-617.) Evidence Code section 958 provides

that there is no privilege “as to a communication relevant to an issue of breach, by

51

the lawyer or by client, of a duty arising out of the attorney-client relationship.”

“Thus, for example, if the defendant in a criminal action claims that his lawyer did

not provide him with an adequate defense, communications between the lawyer

and client relevant to that issue are not privileged.” (Recommendation Proposing

an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 176; see

In re Gray, supra, 123 Cal.App.3d at p. 616.) The exception established in section

958 was intended precisely for the type of situation that occurred at defendant’s

habeas corpus hearing.

Defendant does not dispute that the attorney-client privilege was lost for

purposes of the habeas corpus proceeding but contends that his statements to Dr.

Glathe remained privileged for other purposes, including the retrial. Generally, a

waiver of the privilege for purposes of one proceeding is applicable to all

subsequent proceedings. (People v. Clark (1993) 5 Cal.4th 950, 1005 [because the

defendant waived attorney-client privilege by calling psychiatrist to testify during

a suppression hearing, the defendant’s statements to psychiatrist could be used to

impeach other experts who testified at trial]; People v. Haskett (1990) 52 Cal.3d

210, 243 [because the defendant waived privilege by calling psychiatrist to testify

at first penalty trial, psychiatrist could testify regarding the defendant’s admissions

at penalty retrial].) Strictly speaking, however, Evidence Code section 958

establishes an exception to the privilege, not a waiver. A waiver occurs if the

holder of the privilege discloses the communication or consents to disclosure by

another, without coercion, or fails to claim the privilege in a proceeding in which

he or she has the opportunity to do so. (Evid. Code, § 912, subd. (a).) Defendant

asserted the privilege in the habeas corpus hearing, but the referee ruled that

communications to Dr. Glathe were not privileged under Evidence Code section

958. The question presented here is whether the applicability of the section 958

52

exception in the habeas corpus proceeding rendered the privilege inapplicable in

all further proceedings, including the retrial.

This court has not previously had the occasion to address that question.

Defendant relies on People v. Dennis (1986) 177 Cal.App.3d 863, 874-876

(Dennis), which concluded that a defendant must be granted use immunity for

disclosures he makes in support of a motion for a new trial based upon ineffective

assistance of counsel.13 Dennis held that because the information a defendant

would be required to disclose in support of a new trial motion might lighten the

prosecution’s burden in bringing about a conviction upon a new trial, the

defendant should be granted use immunity for the material disclosed. Dennis

relied upon the reasoning of a number of decisions by this court granting use

immunity in other contexts in which it would be unfair to require the defendant to

choose between maintaining a privilege and asserting other important rights. For

example, in People v. Coleman (1975) 13 Cal.3d 867, we concluded that when a

defendant is subject to probation revocation proceedings upon grounds that are

also the basis for criminal charges, his testimony at the revocation proceedings is

inadmissible at a subsequent trial on the criminal charges (except to rebut

inconsistent testimony by the defendant in the criminal trial). We recognized that

the public interest in “informed, intelligent and just revocation decisions” would

be furthered if the probationer were not discouraged from speaking freely at such

proceedings. (Id. at p. 874.) On the other hand, the prosecution’s burden to prove

guilt at a criminal trial without requiring the defendant to incriminate himself


13

In People v. Macias (1997) 16 Cal.4th 739, we cited Dennis for the

proposition that statements made by a defendant during a motion for new trial on
the ground of ineffective assistance of counsel are protected from substantive use
but may be used for impeachment.

53

would be lightened if the prosecution, simply by moving to revoke probation

before the criminal trial, could attempt to force the probationer into making

incriminatory statements at the revocation proceeding. (Id. at p. 876.) We

concluded that to force an individual to choose among the “unpalatable

alternatives” of self-accusation, perjury, or silence at the probation hearing in

order to protect his or her constitutional right not to incriminate oneself at the

criminal proceedings “runs counter to our historic aversion to cruelty reflected in

the privilege against self-incrimination.” (Id. at p. 878.)

Similarly, in Bryan v. Superior Court (1972) 7 Cal.3d 575, 586-589, we

held that a minor’s statements made in connection with juvenile court proceedings

cannot be used against him at a subsequent criminal trial after he has been found

unfit for treatment as a juvenile. We reasoned, in part, that the minor “should not

be put to the unfair choice of being considered uncooperative by the juvenile

probation officer and juvenile court because of his refusal to discuss his case with

the probation officer, or of having his statements to that officer used against him in

subsequent criminal proceedings.” (Id. at pp. 587-588; see also In re Wayne J.

(1979) 24 Cal.3d 595, 602 [admissions made to a probation officer at a required

postdetention interview may not be used at the minor’s juvenile court jurisdiction

hearing]; People v. Harrington (1970) 2 Cal.3d 991, 999-1000 [use immunity

applied to the defendant’s discussion of case details with a probation officer after

conviction].)

Although few courts have addressed the issue directly, the weight of

authority from other jurisdictions supports the reasoning of Dennis, supra, 177

Cal.App.3d 863. The Supreme Court of Pennsylvania has held that “the policy

inherent in the legislative recognition and judicial enforcement of the attorney-

client privilege, as it implicates a defendant’s exercise of the right to effective

assistance of counsel and to freedom from compelled self-incrimination, restricts

54

the use as well as the scope of permitted disclosures. Just as an attorney may not

respond to allegations of ineffectiveness by disclosing confidences unrelated to

such allegations, so the client confidences properly disclosed by an attorney at an

ineffectiveness hearing may not be imported into the client’s subsequent trial on

criminal charges.” (Com. v. Chimel (Pa. 1999) 738 A.2d 406, 424.)

A Missouri appellate court reached a similar conclusion, holding that a

defendant’s testimony at a postconviction hearing challenging his conviction on

the ground of ineffective assistance of counsel could not be admitted against him

when he was retried. (State v. Samuels (Mo. 1998) 965 S.W.2d 913.) Samuels

relied upon the reasoning of Simmons v. United States (1968) 390 U.S. 377. In

Simmons, the United States Supreme Court held that a defendant’s testimony at a

pretrial hearing on his motion to suppress evidence of an illegal search could not

be used against him at trial. The high court reasoned that a defendant should not

be forced to surrender his Fifth Amendment right not to incriminate himself in

order to protect his Fourth Amendment right to be free from unreasonable searches

and seizures. The Missouri court similarly reasoned that a defendant should not be

forced to choose between enforcing his Sixth Amendment right to the effective

assistance of counsel and his Fifth Amendment right not to incriminate himself.

(Samuels, supra, 965 S.W.2d at p. 919; see also Waldrip v. Head (Ga. 2000) 532

S.E.2d 380 [defendant waived attorney-client privilege as to documents relevant to

claims of ineffective assistance, but disclosure of such documents should be

limited to the purpose of rebutting claim of ineffectiveness].)

The United States Court of Appeals for the Ninth Circuit similarly has held,

in an en banc decision, that in federal habeas corpus proceedings the petitioner’s

waiver of the attorney-client privilege arising from a claim of ineffective

assistance of counsel extends only to litigation of the petition. (Bittaker v.

Woodford (9th Cir. 2003) 331 F.3d 715.) Bittaker upheld a district court’s order

55

precluding the disclosure of privileged attorney-client materials for any purpose

other than litigating the federal habeas corpus petition. The court could “conceive

of no federal interest in enlarging the scope of the waiver beyond what is needed

to litigate the claim of ineffective assistance of counsel in federal court.” (Id. at p.

722.) On the other hand, “[a] broad waiver rule would no doubt inhibit the kind of

frank attorney-client communications and vigorous investigation of all possible

defenses that the attorney-client and work product privileges are designed to

promote.” (Ibid.) Furthermore, “[t]he fortuity that defendant’s initial trial was

constitutionally defective gives the prosecution no just claim to the lawyer’s case

file or testimony. To the contrary, allowing the prosecution at retrial to use

information gathered by the first defense lawyer ― including defendant’s

statements to his lawyer ― would give the prosecution a wholly gratuitous

advantage.” (Id. at p. 524.)

We find the reasoning of these cases persuasive. We have recognized that

in some circumstances the attorney-client privilege may apply even when the

communications at issue have been disclosed in another context and are no longer

confidential. (People v. Clark, supra, 50 Cal.3d 583, 620-621 [although defense

psychologist properly disclosed communications to third parties to avert potential

danger to them, thereby eliminating the psychotherapist-patient privilege,

attorney-client privilege nevertheless applied].) In Clark, we noted that the

purpose of the psychotherapist-patient privilege is to promote the therapeutic

relationship, a purpose that “can no longer be achieved once the therapist has

revealed the confidential communications to third parties.” (Id. at p. 621.) In

contrast, however, we found no provision in the Evidence Code that reflected “an

intent that the attorney-client privilege terminate if a communication to an attorney

is made public without a waiver of confidentiality by the client.” (Ibid.) The

attorney-client privilege “exists to permit a client to freely and frankly reveal

56

confidential information, including past criminal conduct, to the attorney or others

whose purpose is to assist the attorney, and to thereby enable the attorney to

adequately represent the client. [Citation.] In a criminal case the privilege also

serves to preserve the defendant’s privilege against self-incrimination . . . . To

make adequate representation possible, therefore, these privileges assure criminal

defendants that confidential statements to their attorney will not be admissible in

any proceeding.” (Id. at p. 620, fn. omitted.)

The purpose of the exception to the attorney-client privilege established by

Evidence Code section 958 is to avoid the injustice of permitting “a client either to

accuse his attorney of a breach of duty and to invoke the privilege to prevent the

attorney from bringing forth evidence in defense of the charge or to refuse to pay

his attorney’s fee and invoke the privilege to defeat the attorney’s claims.” (7 Cal.

Law Revision. Com. Rep., supra, p. 176.) That purpose was fully met when Dr.

Glathe was permitted to testify for the prosecution at the habeas corpus hearing.

To interpret section 958 as abolishing the privilege for all purposes in this context

would raise serious questions as to whether section 958 conflicts with the

defendant’s Sixth Amendment right to counsel, a right that the privilege is

intended to promote.

Furthermore, in a case such as this, in which the defendant successfully

established that his previous attorney provided constitutionally ineffective

assistance, the disclosure of confidential communications at the habeas corpus

hearing can be attributed to the attorney’s ineffective assistance. The admission of

those communications at a retrial may be viewed as a further consequence of the

violation of the defendant’s right to effective assistance of counsel. (Cf. People v.

Karlin, supra, 231 Cal.App.2d 227 [the defendant’s admissions made at

preliminary hearing, when his attorney had a conflict of interest, could not be used

at his subsequent trial].) In light of these serious constitutional concerns, we

57

conclude the attorney-client privilege continues to apply for purposes of retrial

after otherwise privileged matters have been disclosed in connection with habeas

corpus proceedings, under Evidence Code section 958.

Nevertheless, we agree with the Attorney General’s alternative argument

that the privilege was waived at trial when the defense presented the testimony of

expert witnesses who had reviewed and considered Dr. Glathe’s report and prior

testimony. Both Dr. Evans and Dr. Clark testified that they had reviewed this

court’s decision in Ledesma I, which included the complete text of Dr. Glathe’s

report and referred to defendant’s confession to Dr. Glathe. (Ledesma I, supra, 43

Cal.3d at pp. 195, fn. 5, 205.) Dr. Evans had reviewed a transcript of the hearing

in the habeas corpus proceeding, which included Dr. Glathe’s testimony

concerning defendant’s confession to him, and the prosecution cross-examined her

about defendant’s statements to Dr. Glathe without objection.

An expert witness may be cross-examined as to “the matter upon which his

or her opinion is based and the reasons for his or her opinion.” (Evid. Code § 721,

subd. (a).) The scope of cross-examination permitted under section 721 is broad,

and includes examination aimed at determining whether the expert sufficiently

took into account matters arguably inconsistent with the expert’s conclusion. (See

People v. Osband (1996) 13 Cal.4th 622, 712 [under Evidence Code section 721,

subd. (a), expert who was familiar with the defendant’s juvenile record could be

cross-examined about it “to determine whether he took it into account” in forming

his opinion].) “Once the defendant calls an expert to the stand, the expert loses

his status as a consulting agent of the attorney, and neither the attorney-client

privilege nor the work-product doctrine applies to matters relied on or considered

in the formation of his opinion.” (People v. Milner (1988) 45 Cal.3d 227, 241;

compare People v. Coddington (2000) 23 Cal.4th 622, 604-606 [prosecutor’s

cross-examination of testifying defense experts about prior examinations of the

58

defendant by nontestifying defense experts violated work-product privilege, when

testifying experts were not aware of the earlier examinations].)

In People v. Combs (2004) 34 Cal.4th 821 (Combs) we recognized that the

prosecution is entitled to cross-examine an expert concerning an otherwise

privileged report considered by the expert in formulating his or her opinion. In

Combs, a psychiatrist, Dr. Oshrin, examined the defendant and provided a report

to defense counsel. (Id. at p. 862.) Although Dr. Oshrin did not testify, the

prosecutor was permitted to cross-examine two other defense experts concerning

Dr. Oshrin’s report. Both doctors had read and considered Dr. Oshrin’s report and

relied upon portions of it in forming their opinions. (Id. at p. 863.) We rejected

the defendant’s argument that the trial court erred in requiring the defense to

provide a copy of Dr. Oshrin’s report to the prosecution, noting that, contrary to

the defendant’s contention, the defendant voluntarily had furnished Dr. Oshrin’s

report to the prosecutor during the examination of another defense expert, Dr.

Crinella. This court “presume[d] that defense counsel provided Dr. Oshrin’s

report because he knew that the prosecutor was entitled to cross-examine Dr.

Crinella about its contents.” (Id. at p. 862.)

The defendant in Combs also argued that allowing the prosecutor to call Dr.

Oshrin as a rebuttal witness violated the attorney-client privilege. Although we

concluded that the defendant had forfeited the issue by failing to assert the

attorney-client privilege at trial, we addressed the merits of the claim, stating that

“[d]efendant waived any protections that the attorney-client privilege, the attorney

work product doctrine, and the privilege against self-incrimination afforded him

regarding all matters that [the testifying defense experts] considered or on which

they relied, including Dr. Oshrin’s report.” (Combs, supra, 34 Cal.4th at p. 864.)

We rejected the defendant’s argument that the defense experts could be cross-

examined only as to those portions of Dr. Oshrin’s report that they had adopted

59

and relied upon. (Id. at pp. 893-864.) Furthermore, because the defendant waived

all privileges regarding Dr. Oshrin’s report, “the prosecutor was free to call Dr.

Oshrin as a rebuttal witness and to question him about that report.” (Id. at p. 864.)

Likewise, in the present case, defendant waived the protections of the attorney-

client privilege as to his statements to Dr. Glathe by presenting the testimony of

experts who had reviewed and considered Dr. Glathe’s report and his testimony at

the habeas corpus hearing.14



2. Consideration of confession to Dr. Glathe for the truth of

the matter

Defendant contends the trial court erred by instructing the jury that Dr.

Glathe’s testimony concerning defendant’s confession to him could be considered

for the truth of the matter and as evidence of guilt. The trial court did not formally

instruct the jury that Dr. Glathe’s testimony could be considered as evidence of

guilt, but did make statements in the jury‘s presence indicating that the testimony

had been admitted for that purpose. During the cross-examination of Dr. Glathe,

defense counsel asked the court whether it was correct that what the witness had

been told by defendant had not been received for the truth of the matter stated.

The court, in the presence of the jury, replied, “No, it has been offered for the truth

of the matter stated.” Later during the cross-examination, the court sustained an

objection to a question asked by defense counsel that may have appeared to relate


14

Defendant alternatively argues that Dr. Glathe’s testimony should have

been excluded because it was the fruit of former counsel’s ineffective assistance.
We find no basis for concluding that defendant would not have made a confession
to Dr. Glathe had he received competent assistance from his first trial attorney. To
the extent defendant argues that Dr. Glathe’s testimony was the fruit of his
attorney’s ineffective assistance because it was disclosed during the habeas corpus
proceedings, the substance of this argument has been addressed above.

60

to the witness’s opinion concerning whether defendant had been telling him the

truth. The court explained its ruling as follows: “The doctor has testified to a

statement made by the defendant. . . . [B]ut it’s for the jury to determine whether

or not that statement is to be believed. . . . [I]t’s the truth or falsity of the

statement that is in question and this witness cannot help us on that.”

Defendant asserts that the court’s comments were erroneous, because under

In re Spencer (1965) 63 Cal.2d 400 (Spencer) defendant’s statements to Dr. Glathe

could be considered only as the basis for his expert opinion. We have stated, “It

is well settled that an expert’s testimony as to a defendant’s incriminating

statements may not be regarded as proof of the facts described in such statements.”

(People v. Williams (1988) 45 Cal.3d 1268, 1327, citing People v. Cantrell (1973)

8 Cal.3d 672, 683 and Spencer, supra, 63 Cal.2d 400.) This rule derives from our

decision in Spencer. Spencer held that a defendant may be examined by a court-

appointed psychiatrist without the presence of his attorney, but established two

safeguards in order to protect the defendant’s right to counsel: First, the

psychiatrist may not testify unless the defendant puts his or her mental state in

issue. Second, if the psychiatrist testifies, the jury must be instructed that any

incriminating statements made to him or her by the defendant may be considered

only as the basis for an opinion, and not for the truth of the matters stated.

(Spencer, supra, 63 Cal.2d at pp. 412-413.)

Even if Spencer is applicable (and, as discussed below, we conclude it is

not), defendant has forfeited any claim that the trial court’s comments were

erroneous, because he did not request an instruction that Dr. Glathe’s testimony

could be considered only for the limited purpose of evaluating the basis of the

experts’ opinions. The trial court is not required to give the limiting instruction

prescribed by Spencer in the absence of a request. (People v. Cantrell, supra, 8

Cal.3d 672, 683.) Defendant argues that the issue has not been forfeited because

61

any request for a limiting instruction would have been futile. We disagree. The

trial court did indicate in response to defense counsel’s questions that the

testimony was admissible for its truth, but defense counsel never argued that it

could be admitted only for a limited purpose under Spencer. Rather, counsel

argued that Dr. Glathe could not testify at all, because of the attorney-client

privilege. Defense counsel also objected to Dr. Glathe’s testifying on the ground

that his testimony should be excluded under Evidence Code section 352 as more

prejudicial than probative, and as cumulative. Defense counsel did not argue that

the testimony, if admitted, could be admitted for a limited purpose.

Even if the issue had not been forfeited, we would find no error, because

Spencer applies when the defendant’s admissions are made to an expert who has

been appointed to report to the court, but not when the defendant’s admissions are

made to an expert appointed to assist defense counsel. Spencer required a limiting

instruction when an expert who was appointed by the court to examine the

defendant testified regarding the defendant’s mental state. Spencer acknowledged

that under Massiah v. United States (1964) 377 U.S. 201, 205, the defendant has a

right to have counsel present at such an examination, but that “such presence may

largely negate the value of the examination.” (Spencer, supra, 63 Cal.2d at

p. 411.) The court concluded that the presence of counsel at such a psychiatric

examination “is not constitutionally required so long as certain safeguards are

afforded to defendant.” (Id. at p. 412.) These safeguards include the following:

(1) before submitting to an examination by a court-appointed psychiatrist, the

defendant must be represented by counsel or must waive that right; (2) counsel

must be informed of the appointment of the psychiatrist; (3) if the defendant does

not place his or her mental state in issue, the psychiatrist should not be permitted

to testify; and (4) if the psychiatrist does testify, “the court should instruct the

jurors that the psychiatrist’s testimony as to defendant’s incriminating statements

62

should not be regarded as proof of the truth of the facts disclosed by such

statements and that such evidence may be considered only for the limited purpose

of showing the information upon which the psychiatrist based his opinion.” (Id. at

p. 412.) These “safeguards are sufficient to justify the exclusion of counsel from

the psychiatric examination and at the same time avoid a deprivation of

defendant’s constitutional rights.” (Id. at p. 413.) “Under this formulation, a

defendant’s constitutional rights are amply protected, while the court, the

prosecution, and the defendant will obtain the benefit of the testimony of an

impartial psychiatrist as to defendant’s mental condition.” (Ibid.)

Spencer’s rationale is inapplicable when the psychiatrist is appointed to

assist the defense and the communications between defendant and the psychiatrist

are, hence, protected by the attorney-client privilege. When, as in the present case,

the psychiatrist has been appointed to assist the defense and operates under the

attorney-client privilege, the state has not interfered in any way with the

defendant’s right to counsel. The defendant and his or her attorney may decide

whether the attorney should be present when the psychiatrist interviews the

defendant and may decide whether or not to use the results of the examination at

trial. Even if the defendant places his or her mental state in issue, the defendant

does not thereby waive the attorney-client privilege. (People v. Lines, supra, 13

Cal.3d at p. 514.) The psychiatrist may testify only if the defendant calls the

psychiatrist as a witness or waives the privilege in some other manner.

Defendant cites this court’s decision in People v. Morse (1969) 70 Cal.2d

711 (Morse) for the proposition that the safeguards set out in Spencer apply even

when the psychiatrist has been appointed to assist the defense. Morse sometimes

has been cited for that proposition, and on occasion we have assumed that Spencer

does apply to defense psychiatric experts. (See, e.g., People v. Clark, supra, 5

Cal.4th 950, 1008 [jury was admonished not to consider statements made by

63

defendant to defense psychiatrist for the truth of their contents; defendant’s claim

that evidence was misused for its substance was rejected]; People v. Cantrell,

supra, 8 Cal.3d 672, 683-684 & fn. 2 [finding no error in the court’s failure to give

a limiting instruction under Spencer, because the defendant had not requested one

when three psychiatrists, called by the defense (one of whom had been selected by

the defendant’s counsel to advise the defense), testified concerning the defendant’s

incriminating statements]; see also People v. Balderas (1985) 41 Cal.3d 144, 167,

fn. 7 [trial court admonished jury to consider defense expert’s testimony

concerning the defendant’s admissions only as bearing on his opinion and not as

evidence of guilt].)

Nevertheless, Morse, supra, 70 Cal.2d 711, does not hold that the Spencer

safeguards apply whenever the psychiatrist has been appointed to assist the

defense. In Morse, a psychiatrist testified for the defense and gave an opinion

concerning the defendant’s mental state at the time of the offense. During cross-

examination, the psychiatrist admitted he had reviewed a transcript of an interview

between the defendant and police officers. The trial court previously had ruled

this interview inadmissible because it was conducted in violation of the

defendant’s right to counsel. Nevertheless, the trial court permitted the prosecutor

to question the psychiatrist about several of the statements made by the defendant

during the police interview but admonished the jury that it could consider those

statements only for the purposes of testing the psychiatrist’s credibility and

opinion. (Id. at p. 725.)

On appeal the defendant argued that, because the interview had been

obtained in violation of his constitutional rights, it “could not form the basis of

cross-examination without infringing upon those same rights.” (Morse, supra, 70

Cal.2d at p.725.) Analogizing to Spencer, this court rejected the defendant’s

argument, because the jury had been admonished to consider the statements only

64

for the purpose of impeaching the expert and not for their substance. (Morse,

supra, 70 Cal.2d. at p. 726.) This court indicated that the circumstances that the

psychiatrist involved was appointed specifically to aid the defense, and that there

were other differences between the two cases, “do not render our Spencer rationale

inapplicable.” (Ibid.) In both situations — the defendant’s interview with the

court-appointed psychiatrist without the presence of counsel in Spencer, and the

defense experts’ consideration of the defendant’s statements to the police made

without counsel in Morse — “defense counsel has consented to the use of

incriminating statements for the purpose of psychiatric evaluation. . . . In either

situation the defense can have no cause for complaint when the incriminating

statements are brought to light as one of the bases of the expressed opinion,

provided of course that the proper limiting instruction has been given.” (Ibid.)

The “Spencer rationale” that applied in Morse was Spencer’s conclusion

that a defendant’s right to counsel is not violated if a limiting instruction is given.

A violation of the defendant’s right to counsel in Morse occurred because he was

interviewed by the police without his counsel being present, not because he was

interviewed by the defense psychiatrist without his counsel being present. Morse

does not support the proposition that the defendant’s right to counsel, or any other

constitutional right, is violated when a defense psychiatrist testifies concerning

statements made to him or her by the defendant. Neither Spencer nor Morse

supports the conclusion that a limiting instruction must be given even when the

constitutional right to the assistance of counsel is not at issue. Accordingly, the

trial court was not required by Spencer to instruct the jury that Dr. Glathe’s

65

testimony concerning defendant’s statements could not be considered as proof of

the truth of the matter stated.15

Furthermore, we cannot conclude that the absence of a limiting instruction

denied defendant a fair trial. Defendant’s confessions to other witnesses already

were properly before the jury. It was permissible for the jury to consider the fact

that defendant made a confession to Dr. Glathe for the nonsubstantive purpose of

rebutting the defense experts’ theory that his similar confessions to other witnesses

were false. Under these circumstances, “a limiting instruction would have had

little or no effect.” (People v. Cantrell, supra, 8 Cal.3d at p. 683 [absence of a

limiting instruction required by Spencer did not deny the defendant a fair trial

when incriminating statements he made to psychiatrists were essentially the same

as those he made to other witnesses].)







3. Evidence Code section 352

Defendant further asserts that the trial court erred in admitting Dr. Glathe’s

testimony under Evidence Code section 352, asserting that it was more prejudicial

than probative. We review the trial court’s ruling for abuse of discretion. (People

v. Holloway (2004) 33 Cal.4th 96, 134.) The evidence was relevant to rebut

defendant’s assertions that he had not confessed to other witnesses or that in doing

so he was merely bragging. Defendant contends the jury could not properly

evaluate whether Dr. Glathe’s testimony related a true or false confession without

15

Of course, if the statements concerning which a psychiatrist testifies do not

fall within an exception to the hearsay rule, they would be admissible only as the
basis of the psychiatrist’s opinion, and a limiting instruction normally would be
given if requested. (See CALJIC No. 2.10 [which was given at defendant’s trial];
see also Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 360.)
Here, however, defendant’s statements to Dr. Glathe constituted admissions, and
the hearsay rule did not prevent the jury from considering them as proof of the
matters asserted. (Evid. Code, § 1220.)

66

considering the context in which defendant’s statement was made, including the

ineffective assistance of prior counsel, and that such consideration could not be

accomplished without undue prejudice. The question of whether defendant’s

confessions were false was fully litigated, however. Defense counsel cross-

examined Dr. Glathe concerning his failure to conduct further psychological tests

or explore the truth or falsity of the confession, and Dr. Glathe admitted that ―

had he been aware defendant had a pattern of telling stories and had brain

damage ― those circumstances might have affected his expert opinion. Defense

expert Dr. Rosenthal testified that defendant could have made a false confession to

Dr. Glathe as a means of establishing power in a relationship with an authority

figure. We find no abuse of discretion.







4. Evidence Code section 804, subdivision (b)

Defendant argues alternatively that Dr. Glathe’s testimony should have

been excluded under Evidence Code section 804, because Dr. Glathe was

defendant’s agent within the meaning of that statute. Subdivision (a) of section

804 provides that if an expert witness testifies that “his opinion is based in whole

or in part upon the opinion or statement of another person, such other person may

be called and examined by any adverse party as if under cross-examination

concerning the opinion or statement.” Section 804 does not apply if the person

upon whose opinion the expert relied is “identified with” a party, a term that

includes someone who is an agent of the party. (Evid. Code, §§ 804, subd. (b),

776, subd. (a).)

Defendant’s argument is misplaced. Evidence Code section 804 governs

the manner of examination; it permits a party to cross-examine the expert even

though the expert is the party’s own witness. (See 7 Cal. Law Revision Com.

Rep., supra, p. 152.) The circumstance that section 804 does not apply if the

expert is an agent of a party does not preclude calling the expert as a witness; that

67

circumstance simply signifies that the examination is governed by other applicable

statutes. (See, e.g., Evid. Code, § 776 [authorizing a party or person identified

with a party to be called as a witness by an adverse party, but requiring that

counsel for the party who is the witness or is identified with the witness examine

the witness as if on redirect examination]; 7 Cal. Law Revision Com. Rep., supra,

p. 1221 [noting that language of Evidence Code section 1203, subdivision (b),

which is identical to the relevant language of Evidence Code section 804,

subdivision (b), would prohibit counsel for a party from examining his or her own

client as if under cross-examination].)





E. Interception of Telephone Call

Defendant contends evidence of a telephone call from him that was

intercepted by police officers when they were in his apartment was obtained in

violation of the Fourth Amendment of the federal Constitution and article I,

section 13 of the California Constitution and should have been excluded at trial.

Evidence presented in the trial court at a hearing on defendant’s motion to

suppress evidence of the telephone call established the following:

When the police interviewed the victim (Mr. Flores) about 15 minutes after

the robbery, he reported a license plate number for the motorcycle that had been

used by the robbers. Defendant was the registered owner of that vehicle. His

name and the address used for the registration were broadcast over the police

radio. Officer Webster heard the broadcast and promptly went to the address,

where he was told that defendant no longer resided at that location but now resided

in a duplex in the vicinity of Third and Hedding in San Jose and that he drove a

white Cadillac. As Officer Webster drove around the area of Third and Hedding,

he observed a white Cadillac parked in a driveway in front of a house. Webster

ran a check on the license plate and found that the Cadillac was registered to

defendant. The officer watched the house for approximately 20 minutes until

68

additional officers arrived. He and two other officers went to the front door, and

he knocked at approximately 6:15 or 6:30 p.m.

The door was answered by Lawrence Santiago, who stated when asked that

he was not defendant and that defendant was not in the house. Officer Webster

asked Santiago whether he would mind if the officers entered and looked around.

Santiago said he was just visiting but that he did not mind, and stepped back to let

the officers in. Millie Dominguez also was present. The officers entered and

searched the house but did not find defendant. One of the two occupants of the

house mentioned that defendant had called earlier and was expected to call back.

When the telephone rang, the officers instructed the occupants not to answer it.

Officer Guerra picked up the phone, pretending to be Millie Dominguez. The

caller identified himself as defendant and said that he was “hot” and that the police

were looking for him. He instructed her to lock the doors of the apartment and the

Cadillac and to take a walk.

The trial court denied defendant’s motion to suppress, concluding that the

officers’ entry into the house was consensual, and that the interception of the call

was the result of a “fresh pursuit situation.” Officer Guerra was permitted to

testify at trial concerning the contents of the telephone call.

In its opinion reversing defendant’s first conviction, this court concluded

that counsel at defendant’s first trial provided ineffective assistance in failing to

move to suppress evidence of the intercepted telephone call. We observed that

because the officers’ entry into the apartment was without a warrant, it was

presumptively unlawful. (Ledesma I, supra, 43 Cal.3d at p. 227.) However, we

also noted that if counsel had challenged the admissibility of the call, “the

prosecution may well have been successful in rebutting the presumption of

unlawfulness,” and stated that the prosecution was not foreclosed from attempting

on retrial to “rebut the presumption of unreasonableness.” (Id. at p. 227, fn. 11;

69

see also id. at p. 236 (conc. opn. of Mosk, J.) [concluding that it appeared the

police entry was not based on voluntary consent and that even if it was, the

consent did not extend to interception of the telephone call, but noting that if

defense counsel had challenged the admissibility of the intercepted call, the

prosecutor “might have presented evidence and argument to show that the entry

was lawful or that the intercepted telephone call was admissible”].) We conclude,

based on the record of the retrial, that the prosecution succeeded in rebutting the

presumption that the entry into defendant’s house and subsequent interception of

the telephone call were unlawful.

To establish consent, the prosecution was required to prove that the officers

reasonably and in good faith believed that Santiago had the authority to consent to

their entry into the apartment. (See Illinois v. Rodriguez (1999) 497 U.S. 177;

People v. Escudero (1979) 23 Cal.3d 800.) Although Santiago was just visiting,

he and Dominguez were present in the apartment in the early evening when

defendant was not at home. Cases from a number of jurisdictions have recognized

that a guest who has the run of the house in the occupant’s absence has the

apparent authority to give consent to enter an area where a visitor normally would

be received. (See, e.g., United States v. Turbyfill (8th Cir. 1975) 525 F.2d 57; Nix

v. State (Alaska 1981) 621 P.2d 1347; State v. Thompson (Minn. 1998) 578

N.W.2d 734; see also 4 La Fave, Search and Seizure (4th ed. 2004) § 8.5(e).)

Furthermore, the police may assume, without further inquiry, that a person who

answers the door in response to their knock has the authority to let them enter.

(See Mann v. Superior Court (1970) 3 Cal.3d 1 [entry was consensual where the

police knocked on the door of the defendant’s house, in which a party was taking

place, and voices inside called out “come in”].) There is no indication that the

consent given here was involuntary. The officers asked Santiago for permission to

enter and inspect; such a request, by its nature, carries the implication that

70

permission may be withheld. (See People v. James (1977) 19 Cal.3d 99, 116.)

Therefore, the officers reasonably believed they had consent to enter and were

lawfully in the apartment when they answered the phone.16

The officers’ interception of defendant’s phone call when they were

lawfully present in his apartment was not improper, because it was based on

probable cause, and exigent circumstances justified the officers’ failure to obtain a

warrant. The information supplied by Santiago and Dominguez gave them reason

to believe that the incoming call would be from defendant and that, by answering

it, they would obtain information leading to his imminent capture. (See People v.

Sandoval (1966) 65 Cal.2d 303, 308 [officers who were engaged in a lawful

search justifiably could answer the telephone and conceal their identity, because

they had information that the telephone was being used in drug transactions];

People v. Dreislein (1985) 170 Cal.App.3d 591 [same].) The delay required to

obtain a warrant obviously would have resulted in the loss of this opportunity.

People v. Harwood (1978) 74 Cal.App.3d 460 is distinguishable. In that

case, the court held that consent to enter and search the premises did not include

consent to intercept telephone calls. In Harwood, the police suspected that

narcotics were kept in the apartment but had no specific information indicating

that the telephone was being used for narcotics transactions. (Id. at p. 468.) In the

present case, the police had specific information that defendant was likely to call


16

Contrary to defendant’s contention at oral argument, the recent decision of

the high court in Georgia v. Randolph (2006) 126 S.Ct. 1515, ___ U.S. ___ does
not affect our conclusion. That case held that the police cannot reasonably rely on
one co-occupant’s consent to search a residence when the other co-occupant
expressly refuses consent. It does not change the legal standards applicable to the
present case, in which defendant was not present when the police received consent
to enter his residence and did not refuse such consent.

71

and thus reason to believe that answering the telephone could lead to information

regarding his location.





F. Testimony of Jona Cardona

Defendant argues that several of the trial court’s various rulings regarding

defense counsel’s attempts to impeach prosecution witness Jona Cardona were

erroneous and denied him his right to confront and cross-examine the witness

under the confrontation clause of the federal Constitution. Trial judges retain

“wide latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” (Delaware v. Van

Arsdall (1986) 475 U.S. 673, 679-680; see People v. Jennings (1991) 53 Cal.3d

334, 372.) A trial court’s ruling to admit or exclude evidence offered for

impeachment is reviewed for abuse of discretion and will be upheld unless the trial

court “exercised its discretion in an arbitrary, capricious, or patently absurd

manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez

(1999) 20 Cal.4th 1, 9-10.) As explained below, we find no abuse of discretion in

the trial court’s rulings.

First, defendant challenges the trial court’s ruling sustaining objections to

defense counsel’s questions regarding burglary charges that were pending against

Cardona in 1980, at the time she made an anonymous telephone call to the police

to report discussions she had heard about the murder. The trial court ruled that the

information sought to be elicited by defense counsel was not relevant to

establishing that she had a motive to lie in order to curry favor with the police,

because the call was anonymous; she could not have received favorable treatment

had the police not known who she was. This conclusion is reasonable, and the

trial court did not abuse its discretion. Likewise, the trial court did not abuse its

72

discretion in sustaining objections to defense counsel’s questions concerning Ms.

Cardona’s involvement in a variety of criminal activities, including prostitution

and the use and distribution of drugs. To the extent evidence of such activities

was relevant to her credibility, it was cumulative. Cardona testified that she had

felony convictions for burglary and petty theft with a prior, that she had been

arrested and went to jail many times, that she had served time in prison, and that

she had used drugs, including PCP and heroin.

Second, defendant challenges the trial court’s ruling sustaining objections

to a line of questions asked by defense counsel regarding Cardona’s

hospitalization for psychiatric treatment in 1972. Defense counsel attempted to

inquire whether, when she was in the mental hospital, she had expressed violent

feelings toward her child or other violent fantasies, whether she was told that she

was a person who manipulated other individuals and had a psychopathic streak,

and whether she had told anyone she had delusions, hallucinations, confusion, and

poor memory. The trial court sustained objections to these questions on the

grounds of relevance and, in some instances, privilege, and ordered counsel to

discontinue this line of questioning. The trial court did not abuse its discretion.

The hospitalization occurred in 1972, more than 16 years before her testimony at

trial, and thus had little bearing on Cardona’s credibility at the time she testified.

(See People v. Rodriguez (1986) 42 Cal.3d 730, 749 [trial court did not err in

excluding testimony regarding the witness’s psychiatric treatment five years

before trial, when she was only 15 years of age, because the evidence “did not

have sufficient bearing upon the credibility of her testimony at the trial, when she

was 20”].)

Third, defendant contends the trial court erred in refusing to permit him to

establish, through the testimony of Mary Perez, that Cardona could have been

motivated by jealousy and revenge to falsely implicate Jesse and George Perez.

73

The trial court did not abuse its discretion in excluding this evidence, the relevance

of which was minimal. The testimony did not provide any motive for Cardona to

falsely implicate defendant.

Defendant also contends the trial court should have instructed the jury, on

its own motion, on the rule that an accomplice’s testimony should be viewed with

distrust and must be corroborated. (See CALJIC Nos. 3.10-3.18.) Defendant’s

theory is that the jury could have believed that Cardona did not actually hear

defendant confess to the crimes, and that her testimony was based instead on

information she received from George Perez, one of defendant’s accomplices in

the murder. Instructions on accomplice testimony must be given if there is

evidence to support the conclusion that a prosecution witness was an accomplice.

(People v. Guiuan (1998) 18 Cal.4th 558, 564-565.) No accomplice testified at

defendant’s trial, and defendant’s theory that Cardona indirectly testified based

upon information obtained from an accomplice amounts to nothing more than

conjecture.





G. Hearsay Statements of Gabriel Flores







1. Identification of defendant in photographic lineup

Defendant contends the trial court improperly admitted hearsay testimony

that the victim Flores picked defendant’s picture out of a photographic lineup.17

After a pretrial hearing on the issue, the trial court ruled that evidence of the

identification was relevant for a nonhearsay purpose — to establish that

defendant’s motive for killing Flores was to eliminate him as a witness. The

identification that was made provided evidence of a motive, regardless of whether

17

In Ledesma I, we concluded that trial counsel’s failure to move pretrial to

bar reference to the identification, or at least to object to such reference, amounted
to incompetence. (Ledesma I, supra, 43 Cal.3d at p. 224.)

74

it was accurate. The trial court also concluded that the probative value of the

evidence was not outweighed by its prejudicial effect. The court instructed the

jury that this evidence was offered to show a motive for the murder and was not to

be considered for its truth, that is, to prove that defendant committed the robbery.

It was alleged as a special circumstance that the victim was “intentionally

killed for the purpose of preventing his testimony in any criminal proceeding.”

(Former § 190.2, subd. (c)(2).) It is the “accused’s subjective intent that is

crucial” to establish the witness-killing special circumstance. (People v. Weidert

(1985) 39 Cal.3d 836, 854.) In People v. Heishman (1988) 45 Cal.3d 147, 171, we

held that evidence establishing that the deceased victim had identified the

defendant as the person who had raped her was admissible to prove a witness-

killing special circumstance. In Heishman, the defendant actually had been

charged with the rape at the time of the capital crime. Although the defendant’s

knowledge of the pending charges provided some evidence that he killed the

victim to prevent her from testifying, we concluded that evidence demonstrating

that she actually had identified him nevertheless was relevant to prove the special

circumstance allegation. The defendant “would not likely believe it was necessary

to kill his accuser unless he knew or believed she had identified him to the police

and was prepared to identify him at trial.” (Id. at p. 172.)18

Defendant contends that the victim Flores’s identification of defendant’s

photograph nevertheless should have been excluded as more prejudicial than


18

Because Flores’s statements were admitted for a nonhearsay purpose, their

admission did not, as defendant contends, violate the confrontation clause of the
Sixth Amendment of the federal Constitution. “The Clause . . . does not bar the
use of testimonial statements for purposes other than establishing the truth of the
matter asserted.” (Crawford v. Washington (2004) 541 U. S. 36, 60, fn.9; see
Tennessee v. Street (1985) 471 U.S. 409, 414.)

75

probative under Evidence Code section 352 because of the risk that the jury would

use it for an improper purpose, that is, to prove the charge that defendant robbed

Flores. Defendant also contends the probative value of the actual identification

was minimal, because there was other evidence from which the jury could

conclude that defendant believed he had been identified ― namely, that the police

had told Jesse Perez that a witness had identified defendant, and Jona Cardona

testified that defendant knew he had been identified.

We review for abuse of discretion the trial court’s decision that the

evidence was admissible under Evidence Code section 352. (People v. Holloway,

supra, 33 Cal.4th at p. 134.) Other witnesses testified that defendant’s motive in

killing the victim was that he had identified defendant, but that did not render

proof of the actual identification superfluous as to motive. Jona Cardona testified

that, before the killing, defendant told her he had committed a robbery at a gas

station and wanted to obtain revenge on the victim because he had picked out

defendant from a photograph and had his motorcycle license number. Shirley

Chavez testified that defendant admitted he killed the victim because he had

identified him. Evidence of the identification tended to corroborate the testimony

of these other witnesses ― witnesses whose credibility the defense vigorously

challenged at trial. Furthermore, the risk that the jury would rely on the

identification as proof of defendant’s guilt of the robbery was low, because several

other witnesses testified that defendant had admitted committing the robbery. The

trial court did not abuse its discretion.

Defendant also contends the actual photo display from which the victim

Flores made the identification was irrelevant and should have been excluded under

Evidence Code section 352. Defendant argues the photo display was prejudicial

because the jury could have interpreted defendant’s photograph as a “mug shot”

76

and could have concluded he had been previously arrested and had a criminal

history. The trial court rejected that argument, ruling there was nothing about the

photograph that would identify it as a “mug shot.” Having reviewed the

photograph at issue, we agree.







2. Statements describing robbery and license plate number

Defendant further contends the trial court erred in admitting, as

spontaneous declarations, victim Flores’s hearsay statements concerning the

robbery and the license plate number of the motorcycle used in the robbery.

“Evidence of a statement is not made inadmissible by the hearsay rule if the

statement: [¶] (a) purports to narrate, describe, or explain an act, condition, or

event perceived by the declarant; and [¶] (b) Was made spontaneously while the

declarant was under the stress of excitement caused by such perception.” (Evid.

Code, § 1240.) We review for abuse of discretion the trial court’s decision to

admit evidence as a spontaneous declaration. (People v. Phillips (2000) 22

Cal.4th 226, 236.)

The trial court conducted a hearing at which Officer Guerra testified that

when she interviewed the victim Flores at the gas station on August 26, 1987, he

appeared to be nervous. He said he had been robbed about 15 minutes earlier,

described the robbery and robbers in some detail, and gave her the license plate of

the motorcycle they were driving. The trial court concluded that Flores’s

statements to Officer Guerra were admissible as spontaneous declarations, and

Officer Guerra testified concerning these statements at trial. In addition, Flores’s

supervisor, Eulalio Solorio, testified that on the day of the robbery, Mr. Flores

called him at home, sounding scared. Flores told Mr. Solorio that he had just been

robbed and that he had recorded the license number of the getaway motorcycle.

The trial court’s decision is sufficiently supported by the evidence. Mr.

Flores described a robbery that he had personally perceived, shortly after it

77

occurred. The court’s conclusion that he was under the stress of the event at the

time he made the statements is supported by the brief lapse of time before he made

the statement, by Officer Guerra’s statement that he seemed nervous, and by Mr.

Solorio’s statement that he sounded scared. That statements were made to Officer

Guerro in response to her questions does not render the exception inapplicable.

“Neither lapse of time between the event and the declarations nor the fact that the

declarations were elicited by questioning deprives the statements of spontaneity if

it nevertheless appears that they were made under the stress of excitement and

while the reflective powers were still in abeyance.” (People v. Washington (1969)

71 Cal.2d 1170, 1176.)

Defendant contends that the admission of Mr. Flores’s statements to the

police regarding the robbery nevertheless violated his Sixth Amendment right to

confront the witnesses against him. The confrontation clause applies to hearsay

statements that are “testimonial” in nature, including statements made during

police interrogation. (Crawford v. Washington, supra, 541 U. S. 36.) Such

hearsay may be admitted at trial only if the declarant is unavailable and the

defendant has had a previous opportunity to cross-examine the declarant. The

high court recently concluded that hearsay statements are testimonial when made

in the course of police interrogation and “the circumstances objectively indicate

that there is no . . . ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” (Davis v. Washington (2006) ___ U.S. ___, ___ [126 S.Ct.

2266, 2273-2274].)

Assuming for the purposes of discussion that Mr. Flores’s statements to

Officer Guerra were made in response to interrogation and that their admission in

this case violated defendant’s Sixth Amendment rights, we conclude that any error

78

was nevertheless harmless beyond a reasonable doubt.19 To the extend that

Officer Guerra’s testimony tended to establish that Flores had been robbed and

tended to connect defendant to that robbery, it was cumulative of other evidence.

Mr. Solorio testified that the victim told him he had been robbed and had obtained

the license plate number of the motorcycle used in the robbery. He also testified

that $30 was missing from the gas station. Numerous other witnesses testified that

defendant had admitted committing the robbery.





H. Admission of Witnesses’ Prior Statements

1.



Santiago

Ontiveros

Defendant contends the trial court erred in admitting testimony regarding

statements made by the witness Santiago Ontiveros during a police interview.

When Ontiveros testified at trial, he denied that defendant had told him he was

involved in a robbery or that Ontiveros had told anyone else that defendant had

admitted being involved in a robbery. He further testified that he did not

remember any conversation with a San Jose police officer in March of 1979.

When the prosecutor asked him how he could flatly deny telling anyone that

defendant had committed a robbery, but also testify that he did not remember what

he told the police, he stated, “It’s in my nature. I wouldn’t tell anything to begin

with.”


19

Because we conclude that the admission of Mr. Flores’s hearsay statements

was harmless in any event, we do not address whether, because defendant was
responsible for Mr. Flores’s death, his statements were admissible under the rule
of “forfeiture by wrongdoing,” which the high court has recognized “extinguishes
confrontation claims on essentially equitable grounds.” (Crawford v. Washington,
supra,
541 U.S. at p. 62; Davis v. Washington, supra, ___ U.S. ___, ___ [126
S.Ct. at p. 2280].)

79

Over a hearsay objection, a police officer testified that in March of 1979 he

interviewed Ontiveros, who said that defendant had told him that defendant and

Jesse Perez were involved in the robbery at the Hudson gas station. In addition,

the prosecutor was permitted to play for the jury a portion of the tape-recorded

interview during which Ontiveros told an officer that he did not know anything

about the murder, but that defendant had told him that Jesse Perez was on the back

of the motorcycle during the robbery. The trial court admitted the tape and the

testimony as prior inconsistent statements. (Evid. Code, § 1235.)

A witness’s prior statement that is inconsistent with his or her testimony is

admissible so long as the witness is given the opportunity to explain or deny the

statement. (Evid. Code, §§ 770, 1235.) Defendant complains that the trial court

failed to make a factual finding that Ontiveros’s testimony was inconsistent with

his prior statement, a prerequisite for the admission of those statements. No such

explicit finding is required. “A ruling on the admissibility of evidence implies

whatever finding of fact is prerequisite thereto; a separate or formal finding is

unnecessary unless required by statute.” (Evid. Code, § 402, subd. (c); see People

v. Pinholster (1992) 1 Cal.4th 865, 935.) Furthermore, Ontiveros’s insistence that

he never told anyone that defendant had admitted being involved in the robbery

was plainly inconsistent with his prior statements to the officer.







2. Sylvia Lopez Ontiveros

Defendant similarly challenges the admission of prior statements of Sylvia

Lopez Ontiveros, Santiago’s former wife, which also were admitted as prior

inconsistent statements. Sylvia Ontiveros initially testified that she did not

remember having a conversation with defendant concerning a robbery or murder.

Subsequently, she denied that he ever had told her he was going to kill someone.

Ontiveros recalled speaking to a police officer in March of 1979, and she recalled

testifying at the preliminary hearing in 1979. But she stated she did not remember

80

what she testified about, and did not remember testifying that defendant had told

her he had killed somebody. She did remember being in the district attorney’s

office during the last year and listening to a tape recording in which she was

speaking to a man about defendant, but stated she did not remember many of the

things she said on the recording. She did, however, admit that she might have said

on the recording that defendant had killed the gas station attendant because the

man was going to testify against him. She testified she did not want to be in court

and admitted that when she was called to testify in a previous proceeding in the

same case, she failed to appear and the police had to bring her to court.

After Ontiveros read a copy of her prior preliminary hearing testimony, she

testified that she still did not remember her testimony or the conversations with

defendant to which she had testified. She said she blanked things out because she

did not want to think about them. Over defense objection, the prosecutor was

permitted to have a portion of her preliminary examination testimony read to the

jury. That testimony disclosed that defendant had told her he had killed someone

who had identified him in a robbery, in order to eliminate the witness. She also

testified at the preliminary hearing that, prior to the murder, she had overheard

defendant tell her husband that he was thinking of getting rid of the witness

because the witness had identified him. Evidence of statements made by

Ontiveros during a police interview also were admitted over a hearsay objection.

In the interview, she stated that defendant had told her, prior to the murder, that he

wanted to get rid of the victim. She recounted that he later had told her he had

shot the victim and had told “another guy” to “finish him off.” Defendant also

told her he felt that if he eliminated the victim, the police would not be able to

press charges against him.

Defendant argues that the trial court failed to make a finding that

Ontiveros’s prior statements were inconsistent with her testimony. “Normally, the

81

testimony of a witness that he or she does not remember an event is not

inconsistent with that witness’s prior statement describing the event. (People v.

Green (1971) 3 Cal.3d 981, 988.) However, . . . [w]hen a witness’s claim of lack

of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp.

988-989.) As long as there is a reasonable basis in the record for concluding that

the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission

of his or her prior statements is proper. (People v. O’Quinn (1980) 109

Cal.App.3d 219, 225.)” (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) The

requisite finding is implied from the trial court’s ruling. (Evid. Code, § 402, subd.

(c).)

Although Ontiveros consistently denied at trial being able to remember

anything that defendant had told her, what she had told the police, or her prior

testimony, the record provides a reasonable basis to conclude she was being

evasive. (See People v. Coffman & Marlow (2004) 34 Cal. 4th 1, 78.) She had

been a friend of defendant’s and admitted she was reluctant to testify and had

failed to appear at a previous hearing. She claimed that even reading her prior

testimony in full and listening to a tape recording of her police interview did not

refresh her recollection.





I. Request to Enter Insanity Plea

Defendant asserts the trial court erred in refusing to permit him to enter an

insanity plea late in the trial. On August 30, 1989, during the defense surrebuttal,

counsel made a motion to permit defendant to enter an insanity plea, based upon

recent discussions counsel had had with defense experts. To establish good cause

for a belated entry of the plea, defense counsel explained that until July 31, 1989,

he had not received Dr. Morganthaler’s report relating that defendant suffered

from brain damage. That report caused him to reconsider the issue of sanity.

Thereafter, counsel continued, he asked Dr. Evans and Dr. Rosenthal their

82

opinions concerning defendant’s sanity, and both indicated that defendant met the

test for insanity established in People v. Drew (1978) 22 Cal.3d 333 (Drew).20

The trial court denied the motion, concluding that defense counsel had not

established good cause for the delay in seeking to enter an insanity plea.

The trial court’s ruling on the issue of good cause is reviewed for abuse of

discretion. (People v. Monteil (1993) 5 Cal.4th 877, 923.) We find no such abuse.

As we have noted, the Drew test for insanity is very similar to the defense of

diminished capacity. (People v. Cruz (1980) 26 Cal.3d 233, 251; People v.

Wetmore (1978) 22 Cal.3d 318, 330-331.) Under the Drew test, a person is legally

insane if “as a result of mental disease or defect he lacks substantial capacity either

to appreciate the criminality [wrongfulness] of his conduct or to conform his

conduct to the requirements of law.” (Drew, supra, 22 Cal.3d at p. 345.) Defense

20

The murder was committed in early September of 1978, shortly before this

court, in People v. Drew, supra, 22 Cal.3d 333 (filed Sept. 26, 1978), rejected the
long-standing M’Naghten test for insanity in favor of the test proposed by the
American Law Institute. Subsequently, in 1982, Proposition 8 was adopted by the
voters, reinstating the M’Naghten test for crimes committed after the effective date
of that initiative measure. (See People v. Skinner (1985) 39 Cal.3d 765, 768
[Proposition 8 reinstated the M’Naghten test for insanity]; People v. Smith (1983)
34 Cal.3d 251, 263 [Proposition 8 does not apply to crimes committed before June
9, 1982].) Defendant contends that the Drew test is applicable to his case because
the crimes occurred before the effective date of Proposition 8. The Attorney
General contends that the M’Naghten test applies because the crimes occurred
before the Drew decision. The Attorney General contends that the Drew test
applies only to those crimes that occurred after the Drew decision but before the
reinstatement of the M’Naghten rule in Proposition 8. (See People v. Visciotti
(1992) 2 Cal. 4th 1, 62 [requirement that intent to kill be proved as element of
felony-murder special circumstance applies only to offenses committed on or after
the date of the decision in Carlos v. Superior Court (1983) 35 Cal.3d 131, which
adopted the intent requirement, and before the date of the decision in People v.
Anderson
(1987) 43 Cal.3d 1104, which overruled Carlos].) In view of our
conclusion that the trial court’s denial of defendant’s motion to enter an insanity
plea, if error, was harmless, we need not resolve this issue.

83

counsel had fully prepared a diminished capacity defense and therefore should

have been well aware of the possibility of an insanity defense.

Furthermore, if there was error it was harmless. The jury heard an

extensive presentation of evidence regarding defendant’s mental state at the time

of the crimes. Indeed, defense counsel told the trial court that if an insanity plea

were permitted, he would present very little additional evidence; an insanity trial

would focus upon specific questions related to the standard for insanity and the

experts’ opinions on that subject. Accordingly, we discern no reasonable

probability that the jury would have accepted a defense of insanity based upon its

consideration of essentially the same evidence that it considered on the very

similar issue of diminished capacity. (See People v. Cruz, supra, 26 Cal.3d at p.

252 [finding no prejudice from failure to instruct on the Drew test for insanity

rather than the stricter M’Naghten test, because in rejecting the diminished

capacity defense “the jury necessarily rejected the evidence that might support a

verdict that defendant not only had diminished capacity but was legally

insane”].)21





J. Rebuttal Testimony of Dr. Coleman

Defendant contends that the trial court erred in admitting the rebuttal

testimony of Dr. Lee Coleman because that evidence encouraged the jury to

nullify the diminished capacity defense and to ignore defendant’s mental state and

convict him based upon his acts alone, and because that testimony was irrelevant

and inherently prejudicial, and denied him due process.


21

Because we conclude that the court’s denial of defendant’s motion to

permit entry of an insanity plea was not prejudicial, defendant’s claim that his
counsel rendered ineffective assistance in failing to investigate and present such a
defense in a timely manner must fail.

84

Defendant’s claim was forfeited by counsel’s failure to object in the trial

court. Defense counsel did object to Dr. Coleman’s giving a general opinion on

the reliability of testimony from psychiatrists and psychologists. The court agreed

that his testimony should be directed to the expert testimony given in this case,

and sustained objections when Dr. Coleman appeared to be giving a general

opinion concerning psychological evidence not specifically related to the present

case. But defense counsel did not object to Dr. Coleman’s giving a specific

opinion concerning the reliability of the particular methods used by the defense

experts or their conclusions concerning defendant’s mental state. In the course of

his testimony, Dr. Coleman sometimes explained his opinions on particular

matters by reference to his more general views that psychological methods lack

reliability and relevance in the context of legal proceedings, but defense counsel

did not object to this testimony.

Furthermore, even if defense counsel had objected on the grounds now

urged by defendant, we would find no error. In several cases, we have upheld the

admission of testimony by Dr. Coleman similar to the testimony he gave at

defendant’s trial. (See, e.g., People v. Smithey (1999) 20 Cal.4th 936, 965-969;

People v. Clark, supra, 5 Cal.4th at p. 1019; People v. Danielson (1991) 3 Cal. 4th

691, 728-731.) In Smithey, we fully considered and rejected the arguments

defendant raises here. We find nothing in the present case to distinguish it from

these prior decisions, nor do we find any reason to reconsider our previous

conclusions related to such testimony.





K. Jury Instructions

1.



Failure

to instruct on theft as a lesser included offense of

robbery

Defendant contends the trial court erred in failing to instruct the jury on the

lesser offense of theft regarding the September robbery. Defendant argues there

85

was substantial evidence from which the jury could have concluded that the intent

to steal from the victim was not formed until after the murder, making the offense

theft rather than robbery.22 We agree, and conclude this error requires reversal of

defendant’s conviction for the September robbery (count three) and the robbery

special circumstance finding.

Theft is a necessarily included offense of robbery. (People v. Ramkeesoon

(1985) 39 Cal.3d 346, 351.) “It is well settled that the trial court is obligated to

instruct on necessarily included offenses ― even without a request ― when the

evidence raises a question as to whether all of the elements of the charged offense

are present and there is evidence that would justify a conviction of such a lesser

offense.” (Id. at p. 351.) If there is evidence to support a finding that the

defendant did not form the intent to steal until after the killing, the court should

instruct on its own motion on the lesser included offense of theft. (People v.

Webster (1991) 54 Cal.3d 411, 443-444.) In Webster, the defendant testified that

he decided to take the victim’s property only after he had struggled with and

stabbed the victim. We stated that although he was not entitled to a “pinpoint”

instruction on after-formed intent in the absence of a request, he was entitled to an


22

Defendant also argues that the trial court was required to instruct on

conspiracy to commit theft, because that offense is necessarily included in
robbery, and the court instructed on conspiracy to commit robbery. (See People v.
Horn
(1974) 12 Cal.3d 290, 297; People v. Fenenbock (1996) 46 Cal.App.4th
1688, 1706 [court must instruct on any lesser offenses “which the jury could
reasonably find to be the true objects of the conspiracy”].) The conspiracy
instruction was given as a possible basis for finding defendant vicariously liable
for offenses committed in furtherance of the conspiracy. Because conspiracy to
commit robbery was not a charged offense, there was no need for instructions on
lesser included offenses. Furthermore, defendant points to no evidence that
reasonably would have supported a jury finding that defendant engaged in
conspiracy to commit theft but not conspiracy to commit robbery.

86

instruction on theft as a lesser included offense of robbery (which he received).

(Ibid.)

The evidence in defendant’s case warranted an instruction on theft as a

lesser included offense of robbery. The prosecution’s theory was that defendant

stole the victim’s boots and his money shortly before or after the killing.23 The

evidence presented by the prosecution, however, overwhelmingly supported the

conclusion that the primary motive for the killing was to prevent the victim from

testifying that defendant committed the August gas station robbery. The

prosecution’s witnesses testified that defendant had stated before the killing that

he wanted to kill the victim out of revenge and to prevent his testimony, but there

was no reference to robbing him. None of the evidence related to the admissions

made by defendant after the killing mentioned any intent to steal the victim’s

property. The only reference to a taking in these admissions was defendant’s

comment that Jesse Perez had stolen the victim’s boots. Although the jury could

have concluded, on this evidence, that defendant killed the victim both with the

intent to eliminate him as a witness and to steal his property, it instead could have

readily concluded that the evidence was insufficient to prove that any intent to

steal was formed before the killing. Under these circumstances, the trial court

should have instructed the jury on the lesser included offense of theft.


23

The prosecution also alleged that defendant took a tapestry that had been

hanging in the gas station. On appeal, however, the Attorney General does not
argue that the evidence was sufficient to support a conviction for robbery related
to the taking of the tapestry, and we agree with this apparent concession.
Evidence was presented that, three or four days after Mr. Flores disappeared, his
manager noticed the tapestry was missing. However, the gas station had been
open during this period and there was no evidence concerning how long the
tapestry was missing, nor any evidence that defendant or any of his alleged
accomplices had the tapestry in their possession.

87

An erroneous failure to instruct on a lesser included offense requires

reversal of a conviction if, taking into account the entire record, it appears

“ ‘reasonably probable’ ” the defendant would have obtained a more favorable

outcome had the error not occurred. (People v. Breverman (1998) 19 Cal.4th 142,

178; People v. Watson (1956) 46 Cal.2d 818, 836.) In defendant’s case, there was

strong, explicit evidence that defendant’s purpose in killing the victim was to

eliminate him as a witness to the August robbery, and the jury found true the

witness-killing special circumstance. On the other hand, although the jury could

have inferred that defendant formed the intent to rob before the killing, the

evidence supporting such an inference was weak. Under these circumstances, it

seems reasonably likely the jury would have found defendant guilty of theft rather

than robbery had it been presented with that alternative. Therefore, we must

reverse defendant’s conviction for the September robbery and set aside the true

finding on the robbery special circumstance.

Defendant argues that reversal of his murder conviction also is required,

because the jury could have relied upon the theory of felony murder committed

during a robbery to convict him of first degree murder. We disagree. The jury’s

true finding on the witness-killing special circumstance demonstrates that it found

the murder to be deliberate and premeditated. (See former § 190.2, subd. (c)(2),

added by Stats. 1977, ch. 316, § 9, pp. 1257-1258 [witness-killing special

circumstance requires willful, deliberate, and premeditated killing].) Accordingly,

we may reasonably conclude the jury would have found defendant guilty of first

degree premeditated murder even had it concluded he committed theft rather than

robbery. (Compare Ramkeesoon, supra, 39 Cal.3d at p. 352, fn. 2 [failure to

instruct on theft as lesser included offense of robbery required reversal of the

defendant’s first degree murder conviction because court had “no way of knowing

88

whether the jury relied on [a felony-murder] theory or on premeditation and

deliberation”].)

Defendant further argues that reversal of the robbery special circumstance

requires reversal of his death sentence. We disagree. The jury’s death sentence is

supported by the witness-killing special circumstance. Under circumstances

similar to those of this case, we held the reversal of a robbery conviction and the

setting aside of a robbery special circumstance finding not to require reversal of

the death penalty imposed in People v. Kelly (1992) 1 Cal.4th 495, 551. In

defendant’s case, as in Kelly, “if the jury found defendant first intended to steal the

[victim’s property] after death, but nevertheless erroneously convicted him of

robbery, it would not have given significant weight to that conviction or to the

robbery special circumstance.” (Kelly, supra, 1 Cal.4th at p. 551; see Brown v.

Sanders (2006) 546 U.S. ___ [invalidation of two special circumstances did not

render death sentence unconstitutional when other, valid special circumstances

rendered the defendant eligible for the death sentence, and evidence admitted to

establish the invalid circumstances nevertheless was admissible and properly

considered by the jury.) We find no reasonable possibility that the jury would have

reached a different penalty verdict had it not considered the robbery special

circumstance.24







2. Definition of malice

Defendant complains that the jury instruction on malice defined that word

as “intent to kill,” without explaining that the concept of malice (at the time of

defendant’s offenses) also included the ability to comprehend the duty to comply


24

In light of these conclusions, we do not address defendant’s other claims

related to the September robbery charge.

89

with the law and the ability to act in accordance with that duty. (See People v.

Saille (1991) 54 Cal.3d 1103, 110-1111; People v. Poddar (1974) 10 Cal.3d 750,

758; People v. Conley (1966) 64 Cal.2d 310, 322.) We conclude that the

instructions, taken as a whole, fully conveyed these requirements.

The jury in the present case was told that murder requires proof of malice,

and that “malice is express when there is manifested an intention unlawfully to kill

a human being.” (CALJIC No. 8.11.) In instructing the jury on the lesser offense

of voluntary manslaughter, the court explained: “There is no malice aforethought

if the evidence shows that due to diminished capacity caused by mental illness,

mental defect, or intoxication, the defendant did not have the capacity to form the

mental state constituting malice aforethought, even though the killing was

intentional, voluntary, deliberate, and unprovoked.” (CALJIC No. 8.41.) The jury

further was told that if it found that defendant’s mental capacity was substantially

reduced at the time of the offense, “you must consider what effect, if any, this

diminished mental capacity had on the defendant’s ability to form any of the

specific mental states that are essential elements of murder . . . . [I]f you find the

defendant’s mental capacity was diminished to the extent that you have a

reasonable doubt whether he was able to form the mental state constituting express

malice aforethought, you cannot find him guilty of murder . . . . If you have a

reasonable doubt whether he was able to form an intention unlawfully to kill a

human being, or whether he was aware of the duty imposed on him not to commit

acts which involve the risk of grave injury or death, or whether he did act despite

that awareness, you cannot find that he harbored express malice.” (CALJIC

No. 8.77.)

We reject defendant’s argument that the jury, by focusing upon the initial

definition of express malice, might have concluded that defendant was guilty of

murder as soon as it concluded he intended to kill, without further considering

90

whether diminished capacity negated malice. The jury was instructed: “Do not

single out any particular sentence or any individual point or instruction and ignore

the others. Consider the instructions as a whole and each in light of all the others.”

We presume the jury followed these instructions. (See People v. Sanchez (2001)

26 Cal.4th 834.)







3. Failure to instruct on diminished capacity in relation to

uncharged conspiracy and special circumstances

At the prosecution’s request, the jury was instructed on the uncharged

crime of conspiracy and on vicarious liability for a killing committed in

furtherance of a conspiracy to commit a robbery or kidnapping. Defendant

contends the trial court erred in failing to instruct, on its own motion, that the

defense of diminished capacity applied to the mental state required for conspiracy,

and he claims this error requires reversal of his conviction for murder and the

September robbery.

Even assuming the instructions did not adequately cover the applicability of

diminished capacity to the theory of conspiracy, we agree with the Attorney

General’s argument that any error was harmless. The jury’s verdicts on the special

circumstance and firearm allegations demonstrate that it did not rely upon a theory

of vicarious liability. The jury was instructed that before it could find the special

circumstance allegations to be true, it had to find that defendant was “personally

present during the commission of the act or acts causing death” and that he

“physically aided or committed the act or acts causing death.” (See former

§ 190.2, subd. (c), added by Stats. 1977, ch. 316, § 9, p. 1257.) The jury was

instructed that before it could find the allegations that defendant personally used a

firearm to be true, it had to find defendant “personally used a firearm in the

commission of” each felony. The jury found true the alleged special

circumstances, as well as the personal-firearm-use allegations as to all counts —

91

murder, kidnapping, and robbery. Because the jury found that defendant

personally had participated in the robbery and in the acts causing death, any

defects in the instructions pertaining to vicarious liability for crimes arising out of

a conspiracy could not have affected its verdicts.

Defendant similarly contends the trial court erred in failing to instruct that

the defense of diminished capacity applied to the mental states required for the

special circumstance allegations. Although the instructions on the special

circumstances did not specifically delineate how the defense of diminished

capacity related to the particular mental states required to prove those allegations,

the jury was generally instructed that for both the crime of murder and the special

circumstances alleged, “there must exist a union or joint operation of act or

conduct and a certain specific intent in the mind of the perpetrator. Unless such

specific intent exists the crime or allegation to which it relates is not committed.”

(CALJIC No. 3.31.) Furthermore, the jury was instructed that intent is shown not

only by a statement of intent and the circumstances surrounding the act, but also

by “the sound mind and discretion of the person committing the act.” (CALJIC

No. 3.34.) Finally, even if these instructions were inadequate in some way, the

jury’s rejection of the defense of diminished capacity in relation to the murder

charge demonstrates that any error was harmless.







4. Refusal of instruction that voluntary intoxication may

negate mental state of aider and abettor

The defense proposed, and the trial court rejected, an instruction that the

jury could consider the effect of intoxication on the “intent or purpose either of

committing, or of encouraging or facilitating the commission of, the offense.”

Defendant contends the trial court erred in refusing this instruction because the

jury was not otherwise informed that it could consider the effects of intoxication

92

on the mental state required for liability as an aider and abettor. He asserts this

alleged error requires reversal of his conviction for murder.

We find no error. Defendant’s jury was instructed that it could consider the

effects of intoxication on “defendant’s ability to form any of the specific mental

states that are essential elements of murder” (CALJIC No. 8.77) and that it should

consider “his state of intoxication in determining if the defendant had [the]

specific intent or mental state” required for murder. (CALJIC No. 4.21.) The jury

was informed that liability as an aider and abettor required that defendant act

“with the intent or purpose of committing, encouraging, or facilitating the

commission of the crime.” (CALJIC No. 3.01.) Considering the instructions as a

whole, a reasonable juror would have understood that the intent element required

in order to find defendant guilty of the crime of murder under the aiding and

abetting instructions was a “specific intent or mental state” to which defendant’s

state of intoxication was relevant. (See People v. Castillo (1997) 16 Cal.4th 1009,

1016-1017 [a jury that was instructed to consider evidence of intoxication in

determining whether the defendant possessed the required specific intent or mental

state at the time of the commission of the crime would have reasonably understood

deliberation and premeditation to be “mental states” for which it should consider

the evidence of intoxication].)

Furthermore, even if the instructions did not adequately address the

relevance of intoxication to aider and abettor liability, there was no prejudice. As

discussed above, the jury’s findings on the special circumstances and the firearm-

use allegations demonstrate that it did not rely upon a theory of accomplice

liability to convict defendant of murder.







5. Refusal of proposed pinpoint instructions

Defendant asserts that the trial court erred in refusing to give instructions,

requested by defendant, that he could not be convicted upon “mere suspicion” and

93

that mere opportunity to commit the crime is insufficient proof of guilt. These

proposed instructions are restatements of the requirement that guilt be proved

beyond a reasonable doubt, a requirement that was fully explained to the jury in

other instructions. Therefore, the trial court did not err in refusing them.

(People v. Wright (1988) 45 Cal.3d 1126, 1134.) 25

Nor did the court err in refusing an instruction that directed the jury to

consider, for the purpose of determining whether there was reasonable doubt as to

defendant’s guilt, evidence that another person had the motive or opportunity to

commit the crime. A defendant is entitled, upon request, to a nonargumentative

instruction that pinpoints his or her theory of the case. (People v. Wright, supra,

45 Cal.3d 1126, 1135-1136.) An instruction that directs the jury to “ ‘consider’ ”

certain evidence is properly refused as argumentative. (Id. at p. 1135.) “In a

proper instruction, ‘[w]hat is pinpointed is not specific evidence as such, but the

theory of the defendant’s case.’ ” (Id. at p. 1137, quoting People v. Adrian (1982)

135 Cal.App.3d 335, 338.)

Defendant also requested that the jury be instructed that if evidence tending

to prove that a party other than defendant committed the crime raises a reasonable

doubt as to defendant’s guilt, the jury must find him not guilty. This instruction

was arguably an appropriate “pinpoint” instruction of the type that focuses upon

the defendant’s theory of the case and should be given upon request. (See People

v. Wright, supra, 45 Cal.3d at p. 1137-1138.) But even if the trial court erred in

refusing it, any error was harmless. The jury was instructed on the prosecution’s

burden of proving guilt beyond a reasonable doubt and was instructed specifically

25

For the same reason, we also reject defendant’s argument that the court

erred in failing to instruct the jury, on its own motion, that the presence of motive
and opportunity, without more, is insufficient to establish identity.

94

that if it entertained a doubt concerning whether defendant was present at the time

the crime was committed, it would have to find him not guilty. The jury also was

instructed that to prove the witness-killing special circumstance, the prosecution

had to prove that defendant physically aided or committed the act or acts causing

death. These instructions adequately addressed the prosecution’s burden of

proving beyond a reasonable doubt that defendant perpetrated the crimes charged.

(See People v. Adrian, supra, 135 Cal.App.3d at p. 342 [refusal of pinpoint

instruction on defense claim of self defense was harmless where other instructions

adequately conveyed that the prosecution had the burden of disproving the defense

beyond a reasonable doubt]; People v. Gomez (1972) 24 Cal.App.3d 486 [refusal

of instruction on reasonable doubt regarding accuracy of identification was

harmless where instruction on alibi called to the jury’s attention the necessity of

finding beyond a reasonable doubt that the defendant was present when the

offense was committed].)







6. Corpus delicti instruction

The corpus delicti rule requires some evidence that a crime occurred,

independent of the defendant’s own statements. (People v. Alvarez (2002) 27

Cal.4th 1161,1181.) Defendant contends the trial court erred by instructing the

jury on the corpus delicti rule in the language of CALJIC No. 2.72. This

instruction required that there must be “some proof” of each element of the crime

independent of defendant’s extrajudicial admissions. Defendant asserts that the

instruction should have required the jury to find proof of each element of the crime

to a “reasonable probability.” The instruction given is consistent with the law.

“[T]he modicum of necessary independent evidence of the corpus delicti, and thus

the jury’s duty to find such independent proof, is not great. The independent

evidence may be circumstantial, and need only be a ‘a slight or prima facie

showing’ permitting an inference of injury, loss, or harm from a criminal agency,

95

after which the defendant’s statements may be considered to strengthen the case

on all issues.” (People v. Alvarez, supra, 27 Cal.4th at p. 1181.) Defendant cites

no authority supporting his contention that the jury must be instructed on a

“reasonable probability” standard.

Defendant also contends the trial court erred in instructing that identity is

not an element of the crime that must be established independent of defendant’s

extrajudicial admissions. Defendant asks this court to declare, as a judicial rule of

criminal procedure or as a matter of due process, that the corpus delicti rule

applies to proof of identity. Defendant provides no sound reason for this court to

depart from the long-established principle that the corpus delicti rule does not

require independent proof that the defendant is the perpetrator of the crime. (See,

e.g., People v. Jones (1898) 123 Cal. 65, 68 [“[I]t is not necessary that the

evidence of the corpus delicti should itself connect the defendant with its

perpetration”].) The principal purpose of the corpus delicti rule is to ensure that a

defendant is not convicted of a crime that never occurred. (People v. Carpenter

(1997) 15 Cal.4th 312, 394; see People v. Jennings, supra, 53 Cal.3d 334, 368.)

That purpose is fulfilled by the admission of evidence sufficient to establish that

the crime occurred.





L. Proof of Corpus Delicti

Defendant contends his convictions for the August robbery and for

kidnapping must be reversed because the prosecution failed to establish the corpus

delicti of these crimes independent of defendant’s extrajudicial statements. As

noted above, however, the quantum of evidence required is not great, and “need

only be a ‘a slight or prima facie showing’ permitting an inference of injury, loss,

or harm from a criminal agency, after which the defendant’s statements may be

considered to strengthen the case on all issues.” (People v. Alvarez, supra, 27

Cal.4th at p. 1181.) “The inference [that a crime has been committed] need not be

96

‘the only, or even the most compelling, one . . . [but need only be] a reasonable

one.’ ” (People v. Jones (1998) 17 Cal.4th 279, 301-302, quoting People v.

Jennings, supra, 53 Cal.3d 334, 367.)

Under these standards, there was sufficient evidence to establish the corpus

delicti of the August robbery and of the kidnapping. The testimony of victim

Flores’ supervisor that Flores had told him he had been robbed was, as discussed

above, admissible, and it was sufficient to establish the corpus delicti of robbery.

The circumstances surrounding the murder of Mr. Flores ― as noted, he

disappeared from the gas station during the middle of his shift, leaving it open and

unattended, and his body was discovered later many miles away — were sufficient

to establish a reasonable inference that he had been kidnapped.





M. Sufficiency of Evidence of First Degree Murder

Defendant contends his murder conviction must be reversed because the

evidence was insufficient to prove malice or deliberation and premeditation. He

argues the evidence was insufficient because the prosecution provided no response

to the testimony of the defense experts that, due to the effect on his brain of PCP

use, defendant lacked the capacity to form these mental states. He contends that

the testimony of the prosecution expert Dr. Coleman that the requisite mental state

could be inferred from defendant’s acts was insufficient to rebut the testimony of

the defense experts.

In resolving such a claim, a reviewing court must determine “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319; see also People

v. Marshall (1997) 15 Cal.4th 1, 34.) Contrary to defendant’s contention, the jury

was not required to accept the testimony of the defense experts. “The value of an

expert’s opinion depends upon the quality of the material on which the opinion is

97

based and the reasoning used to arrive at the conclusion.” (Marshall, supra, 15

Cal.4th at pp. 31-32.) The jury could have found the defense experts’ reasoning to

be flawed, or could have found an insufficient basis for concluding that defendant

was under the influence of PCP at the time of the crimes.

The jury also could have concluded that the defense experts’ opinions

regarding defendant’s state of mind were inconsistent with the circumstances of

the offense as described in defendant’s admissions — which indicated that

defendant planned and carried out a plot to kidnap the victim, transport him to a

remote location, and kill him to prevent him from testifying — and with his

conduct in fleeing the state after the crime. Those circumstances are certainly

sufficient to support the jury’s conclusion that defendant was capable of forming,

and did form, the intent to kill and that the murder was deliberate and

premeditated.





N. Sufficiency of Evidence of Witness-killing Special

Circumstance

Defendant contends the evidence is insufficient to support the jury’s finding

that “the victim was a witness to a crime who was intentionally killed for the

purpose of preventing his testimony in any criminal proceeding.” (Former

§ 190.2, subd. (c)(2), added by Stats. 1977, ch. 316, § 9, p. 1258.) He asserts the

evidence, instead, supports the conclusion that the killing was for the purpose of

revenge or to prevent defendant’s arrest.

We uphold the jury’s verdict if there is any substantial evidence to support

it. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Sylvia Ontiveros specifically

testified that defendant said that if he “got rid of the witness, he wouldn’t have a

witness to testify against him.” The circumstances of the offense also support the

conclusion that the victim was killed to prevent his testimony. At the time of the

killing, defendant was aware that he had been identified and that the police were

98

seeking to arrest him. Defendant contends other evidence suggests that

defendant’s intent was to exact revenge or to prevent his arrest ― he stresses his

threat to the victim not to “narc” on him, defendant’s comment that he killed the

victim even though the victim did not recognize defendant (“just in case”), his

statement that he wanted to kill the victim for revenge, and his statement that he

killed because he did not want to get caught. These statements, however, are not

inconsistent with the conclusion that defendant intended to prevent the witness

from testifying. (See People v. Saunders (1990) 51 Cal.3d 471, 520 [evidence was

sufficient to support witness-killing special circumstance when, shortly after a

robbery attempt, the defendant expressed concern that one of the victims could

identify him].) Furthermore, the witness-killing special circumstance is not

inapplicable merely because the defendant might have had more than one reason

to kill. (Id. at p. 519.)

Defendant also contends the witness-killing special circumstance is

inapplicable to his case because the killing of Flores was part of the August gas

station robbery. The witness-killing special circumstance applies only if “the

killing was not committed during the commission . . . of the crime . . . .” (Former

§ 190.2, subd. (c)(2), added by Stats. 1977, ch. 316, § 9, p. 1258.) The witness-

killing special circumstance applies here because the August 26 robbery was long

completed at the time of the murder, which took place no sooner than

September 5. The case of People v. Fields, supra, 35 Cal.3d 329, on which

defendant relies, does not support his contention. In Fields, we concluded that the

robbery victim was killed during the commission of a robbery even though the

killing occurred several hours after the defendant had forced the victim to write

him a check. We noted that the defendant’s motive in killing the victim, to

prevent her from reporting the crime and to punish her for attempting to frustrate

the robbery, served to link the two crimes. (Id. at p. 368.) But we also pointed out

99

that “[s]uch motives would not enable a court to find a killing occurred during the

commission of a robbery if it took place days later and in a far distant locale.”

(Ibid.) In Fields, the murder was committed only a few hours after the robbery

and, importantly, during that period of time the defendant continued to have

“control over the victim, forcing her to remain at his house [where the robbery

took place] and then transporting her to the murder site.” (Ibid.) The facts of the

present case are entirely different. More than one week passed between the

robbery and the killing of the victim, and defendant did not have continuous

control over the victim during that period.





O. Constitutionality of Witness-killing Special Circumstance

Defendant contends that the witness-killing special circumstance is

unconstitutional under the Eighth and Fourteenth Amendments to the federal

Constitution because it fails to reasonably distinguish between persons who

deserve the death penalty and those who do not. In essence, defendant argues that

the witness-killing special circumstance under the 1977 death penalty law is

underinclusive because it applies only to witnesses in criminal, not juvenile

proceedings; it applies only to killings to prevent testimony, not to prevent a crime

report or arrest; and it applies only to killings to prevent future testimony, not

killings in retaliation for actual testimony. (Compare former § 190.2, subd. (c)(2)

with current § 190.2, subd. (a)(10) [special circumstance applicable to killing of a

witness to prevent or retaliate for testimony in a criminal or juvenile proceeding].)

To pass constitutional muster, a capital sentencing scheme must “genuinely

narrow the class of persons eligible for the death penalty and must reasonably

justify the imposition of a more severe sentence on the defendant compared to

others found guilty of murder.” (Zant v. Stephens (1988) 484 U.S. 231, 244.) The

witness-killing special circumstance serves this function by reasonably assigning

greater culpability to those who kill in order to prevent a witness from testifying.

100

Furthermore, the Legislature’s decision to single out for greater punishment those

who kill in order to prevent testimony at a criminal proceeding is not, as defendant

contends, entirely arbitrary. Because juveniles are not subject to the death penalty

and the consequences of juvenile proceedings generally are less severe than those

of a criminal prosecution, the Legislature reasonably could have concluded that

murders of witnesses in criminal proceedings posed a greater threat. It also could

have reasonably concluded that a murder to prevent future testimony should be

treated more seriously than a retaliatory killing because such a killing would

undermine the underlying criminal prosecution. A special circumstance is not

unconstitutional merely because it does not apply to every defendant who may be

otherwise deserving of the death penalty.

Alternatively, defendant argues that the witness-killing special

circumstance is unconstitutionally vague, because a jury might apply it more

broadly than the Legislature intended — for example, to a killing committed for

purposes of revenge or avoiding arrest. We find no merit in this argument. A

statute defining a special circumstance is not vague if the ordinary meaning of its

language adequately communicates the parameters of the statutory requirements.

(People v. Estrada (1995) 22 Cal.4th 568, 581.) The special circumstance applies

if the murder was “willful, deliberate, and premeditated” and if the victim was

“intentionally killed for the purpose of preventing his testimony in any criminal

proceeding.” (Former § 190.2, subd. (c)(2), added by Stats. 1977, ch. 316, § 9, p.

1258.) In People v. Saunders, supra, 51 Cal.3 471, the defendant argued that the

instructions that were given concerning the offense of dissuading a witness from

testifying confused the jury regarding the elements of the witness-killing special

circumstance. We stated that because the instruction on the witness-killing special

circumstance, which was given in the language of the statute, expressed its

meaning “in such a straightforward manner, we find the possibility that the jury

101

sustained the special circumstance without finding these explicit elements is quite

remote.” (Saunders, supra, 51 Cal.3d at p. 518.) Because the words in the

witness-killing special circumstance statute can be readily understood and applied,

it is not unconstitutionally vague.

Finally, defendant contends that the witness-killing special circumstance is

unconstitutional because it does not include a requirement that the defendant kill

with malice aforethought. The special circumstance requires that the defendant

physically aid or commit the act causing death and that the killing be intentional,

deliberate, and premeditated. (Former § 190.2, subd. (c)(2).) These elements

satisfy constitutional requirements. (See Cabana v. Bullock (1986) 474 U.S. 376,

386 [Eighth Amendment is satisfied so long as the defendant killed, attempted to

kill, or intended to kill]; People v. Anderson, supra, 43 Cal.3d 1104, 1140

[Constitution does not require that felony-murder special circumstance provide

that actual killer intended to kill].)





P. Prosecutor’s Closing Argument

Defendant contends the prosecutor committed misconduct in numerous

ways during his closing argument and rebuttal argument at the guilt phase, in

violation of California law and defendant’s right to a fair trial under the Fourteenth

Amendment to the United States Constitution and article I, sections 7 and 15 of

the California Constitution. A prosecutor’s conduct violates the federal

Constitution only when it is “ ‘ “so egregious that it infects the trial with such

unfairness as to make the conviction a denial of due process.” ’ ” (People v.

Gionis, supra, 9 Cal.4th 1196, 1214; People v. Espinoza, supra, 3 Cal.4th 806,

820.) A prosecutor’s conduct that does not rise to the level of a constitutional

violation will constitute misconduct under state law only if it involves “the use of

deceptive or reprehensible methods to attempt to persuade either the court or the

jury.” (Espinoza, supra, 3 Cal.4th at p. 820.) A prosecutor is given wide latitude

102

to vigorously argue his or her case and to make fair comment upon the evidence,

including reasonable inferences or deductions that may be drawn from the

evidence. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) Generally, a claim

of prosecutorial misconduct is preserved for appeal only if the defendant objects in

the trial court and requests an admonition, or if an admonition would not have

cured the prejudice caused by the prosecutor’s misconduct. (People v. Medina,

supra, 11 Cal.4th 694, 761; People v. Fiero (1991) 1 Cal.4th 173, 211; People v.

Ratliff (1986) 41 Cal.3d 675, 690.)

During the prosecutor’s argument, defendant moved for a mistrial based

upon three comments made by the prosecutor. Even if defendant has preserved

these claims despite his failure to request that the trial judge admonish the jury to

ignore them, we conclude that none of the comments amounted to misconduct

under state law; much less did they render the trial fundamentally unfair. (See

People v. Medina, supra, 11 Cal.4th at p. 761.) First, defendant contends the

prosecutor’s reference to the absence of remorse was an improper comment on

defendant’s failure to testify, in violation of Griffin v. California (1965) 380 U.S.

609. The prosecutor noted that defendant had bragged about the murder and

commented, “the quality of defendant’s remorse is notable only in its absence.”

After defense counsel unsuccessfully moved for a mistrial based on this statement,

the prosecutor explained to the jury why he had referred to defendant’s lack of

remorse, explaining that his point was a response to the defense’s theory that

defendant had bragged about the crimes to impress other persons but had not

actually committed them. The prosecutor’s argument was that defendant was

bragging about the crimes because he lacked remorse, “and that explains why he

conducted himself in the manner that he did.” There is no reasonable likelihood

that the jury would have understood these remarks as a comment upon defendant’s

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failure to testify. (See Medina, supra, 11 Cal.4th at p. 755; People v. Clair (1992)

2 Cal.4th 629, 662.)

Second, defendant argues that the prosecutor vouched for the credibility of

witness Jona Cardona by referring to facts outside the record. Responding to the

testimony of a defense witness who claimed to have had sex with Ms. Cardona

and heard her make remarks allegedly inconsistent with her trial testimony, the

prosecutor commented, “If he knew Jona in that way . . . why didn’t he know

about her tattoos?” This argument was based on Ms. Cardona’s testimony, not on

evidence outside the record. She denied knowing the witness, and stated: “He

would have seen [my tattoos] if I went to bed with him, he could tell you where

they were at. He wasn’t there with me in bed, or he could have told you about the

distinguishing marks, right?” Although that testimony was in the form of

rhetorical questions, it constituted evidence that Cardona had distinguishing

tattoos. In this context, the prosecutor’s comment was not improper.

Third, defendant complains the prosecutor attempted to bolster his own

credibility by informing the jury that he taught at a law school. Before explaining

the instructions on circumstantial evidence, the prosecutor mentioned that he

taught a law school class on evidence and that when he reads these instructions to

law students they often have difficulty understanding them. The prosecutor

explained he would help the jurors make sense of the instructions by breaking

them down. We find it inconceivable that this comment could have improperly

influenced the jury.

As to two additional instances of alleged misconduct to which defendant

objected at trial, the trial court admonished the jury, dispelling any possibility of

prejudice. First, defendant contends the prosecutor improperly argued that victim

Flores’s identification of defendant could be considered evidence of defendant’s

guilt of the August robbery. The prosecutor enumerated all of the circumstantial

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evidence against defendant related to the August robbery charge, as well as

defendant’s admissions. When the prosecutor mentioned that Flores had identified

one of the robbers in a photographic lineup, defense counsel objected. The trial

court reminded the jury that the victim identification was admitted only to show

motive for defendant’s actions to the extent that he became aware of the

identification, and that the evidence was not admitted to prove the truth of the

identification. Contrary to defendant’s contention, the prosecutor did not ignore

the court’s admonition; his comments after that point referred only to

circumstantial evidence demonstrating that defendant was told he had been

identified.

Second, defendant asserts that the prosecutor improperly stated that the

testimony of the defense experts was inconsistent. At trial, defense counsel

objected that the prosecutor had misstated the facts. The court admonished the

jury that if facts are misstated during argument, the jurors must rely on their

recollection or can have recourse to the reporter’s notes.

Defendant also cites numerous examples of alleged prosecutorial

misconduct to which he did not object at trial. As to these instances, the issue has

been forfeited. (People v. Medina, supra, 11 Cal.4th at p. 755.) Having reviewed

the entire argument of the prosecutor, we do not find his comments, even if they

were to be characterized as misconduct, to be so pervasive that an objection and

admonition would not have cured the ensuing harm. (See People v. Clair, supra,

at pp. 685-686; cf. People v. Bandhauer (1967) 66 Cal.2d 524, 530.) Although we

need not and do not address the merits of each of these various forfeited

subclaims, we note that the prosecutor did make some inappropriate comments

questioning defense counsel’s ethics. For example, the prosecutor stated that there

had been a “concerted effort in this case to introduce things for your consideration

105

that were introduced perhaps by inappropriate questions. I think you know what I

am referring to.” Such comments, however, were neither egregious nor pervasive.

Nor do we find any reason to believe that objections to any misconduct

would have been futile. This case is distinguishable from Hill, supra, 17 Cal.4th

800, in which we reviewed claims of misconduct despite defense counsel’s failure

to object to some of them because additional attempts to object “would have been

futile and counterproductive to his client.” (Id. at p. 821.) In Hill, we found that if

defense counsel had continued to object, he would have risked “repeatedly

provoking the trial court’s wrath, which took the form of comments before the jury

suggesting Blum was an obstructionist, delaying the trial with ‘meritless’

objections.” (Ibid.) In contrast, the trial judge in the present case ruled on defense

counsel’s objections with admirable patience and equanimity.





Q. Permitting Jurors to Think About the Case at Home

At the end of the first day of jury deliberations, the foreperson asked the

court if she could take the instructions home with her to read. The court told her

she could “as long as you don’t communicate any thought you may develop

concerning that with anyone else while you are separated.” Similarly, when

excusing the jury for the day, the court admonished the jurors that they could

continue to think about the case, but they could not communicate their thoughts to

anyone until they were back together for deliberations.

Defendant contends that permitting the foreperson to read instructions at

home and permitting all the jurors to think about the case after they separated

violated California statutory law as well as defendant’s right to a jury trial under

the Sixth and Fourteenth Amendments to the federal Constitution and article I,

sections 5, 15, and 16 of the California Constitution. We note, first, that the issue

has been forfeited because counsel failed to object in a timely manner. Defense

counsel did not object when the foreperson was told she could take the instructions

106

home, but moved for a mistrial the following morning on the ground that jurors

may not be permitted to deliberate while separated. The court denied the motion,

explaining that the foreperson is required to guide the jurors through their

deliberations and that it would assist them if she were aware of the context of the

instructions they would cover during their deliberations. The court also noted that

defense counsel could have asked to speak to the court outside the presence of the

jury if he wished to object. At the end of the third day of deliberations, the

foreperson again asked to take the instructions home. The court asked all counsel

whether they had any objections, and none did. The court again cautioned the

foreperson not to discuss the instructions with anyone and admonished her not to

look up any words she did not understand.

Even had the issue not been forfeited, we would find no error. Defendant

equates thinking about the case with jury deliberations. Jurors must be

admonished not to form an opinion concerning the case or to discuss it with

anyone before it is submitted to them. (§ 1122.) Once the case has been

submitted to the jurors for decision, they may not deliberate except when all are

together. (§ 1128.) Although the deliberation process of course includes thinking,

defendant has failed to cite any authority suggesting that jurors must be directed

not to think about the case except during deliberations. A juror participates in the

deliberative process by “participat[ing] in discussions with fellow jurors by

listening to their views and by expressing his or her own views.” (People v.

Cleveland (2001) 25 Cal.4th 466, 485.) Indeed, it would be entirely unrealistic to

expect jurors not to think about the case during the trial and when at home. (See

U. S. v. Steele (9th Cir. 2002) 298 F.3d 906, 911 [noting that jurors who reached a

107

verdict on Monday morning may have come “to a resolution during a weekend

when they individually pondered the evidence”].)26

Defendant also contends the trial court made comments that elevated the

status of the foreperson, thereby improperly increasing her influence over the other

jurors. On the third day of deliberations, the court told the jurors that they must

not remove anything from the jury room, including the instructions. The court

noted that the foreperson had been allowed to take the instructions home, “but that

is because of her status as foreperson . . . the foreperson has a need to be perhaps

better informed than anyone else as to where those instructions are located within

that packet.” No objection was made at trial to the court’s explanation, and in any

event we find no error. Contrary to defendant’s contention, the court’s comments

did not convey a message that the opinion of the foreperson was more important

than that of any other juror. The court merely explained that the foreperson should

be in a position to assist deliberations by locating particular instructions within the

large packet the jurors had been given.

III. PENALTY PHASE ISSUES

A.

Vindictive

Prosecution

Defendant asserts the prosecutor’s decision to pursue the death penalty in

his case was the result of vindictiveness — that is, to punish him for pursuing his

constitutional right to counsel and for having obtained a reversal of his previous

conviction and death sentence. Defendant did not preserve the issue because he

did not make any motion in the trial court based upon a theory of vindictive


26

For the same reasons, we reject defendant’s argument that the trial court

erred in admonishing the jurors at the penalty phase that they could continue to
think about the case when separated, but not discuss it with anyone.

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prosecution.27 “Absent proof of invidious or vindictive prosecution, as a general

matter a defendant who has been duly convicted of a capital crime under a

constitutional death penalty statute may not be heard to complain on appeal of the

prosecutor’s exercise of discretion in charging him with special circumstances and

seeking the death penalty.” (People v. Lucas (1995) 12 Cal.4th 415, 477.)

Because the trial court was not called upon to make a ruling, it did not conduct a

hearing on this matter and made no findings of fact.

Furthermore, an inference of vindictive prosecution is raised if, upon retrial

after a successful appeal, the prosecution increases the charges so that the

defendant faces a sentence potentially more severe than the sentence he or she

faced at the first trial. (See In re Bower (1985) 38 Cal.3d 865, 872-875.) In the

present case, however, the prosecution sought the same sentence upon retrial that

it did at the initial trial. The record thus contains no evidence supporting

defendant’s claim of vindictive prosecution.





B. Use of Evidence from First Trial

At the penalty phase, defense counsel sought a ruling that, should defendant

testify and state he was remorseful, the prosecutor would not be permitted to

question him about the circumstances of the crimes or use defendant’s prior

testimony for impeachment. The court declined to make such a ruling, and


27

During the jury selection process (but outside the presence of the jurors),

defense counsel stated on the record that the prosecution had declined to accept
defendant’s plea of guilty in exchange for a sentence of life imprisonment without
the possibility of parole. Defense counsel expressed his opinion that defendant
was being penalized because of the earlier judgment having been reversed, and
noted that at one point the prosecutor had indicated to him that accepting such a
settlement would cause adverse publicity. Defense counsel stated, however, that
he was mentioning these matters as “food for thought for the prosecution” and did
not make any motion.

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defense counsel indicated that as a result he would not call defendant as a witness.

Defendant contends the trial court’s ruling denied him his rights to effective

assistance of counsel and to testify in his own defense under the Fifth, Sixth, and

Fourteenth Amendments to the federal Constitution and article I, sections 7 and 15

of the California Constitution.

Defendant has failed to preserve this claim of error. It is well established

that the denial of a motion to exclude impeachment evidence is not reviewable on

appeal if the defendant subsequently declines to testify. (See Luce v. United States

(1984) 469 U.S. 38 (Luce) [denial of in limine motion to preclude impeachment of

the defendant with a prior conviction is not reviewable on appeal if the defendant

did not testify]; People v. Collins (1986) 42 Cal.3d 378, 383-388 (Collins)

[prospectively adopting the Luce rule].)

Defendant argues that the Luce rule does not apply, because defendant’s

prior testimony was constitutionally tainted and because evidence that he had

perjured himself in the prior trial would completely undermine his current

testimony regardless of its content. (See People v. Brown (1996) 42 Cal.App.4th

461, 468 [defendant need not testify in order to preserve his claim that trial court

erred in admitting for impeachment purposes a statement obtained in violation of

his right to counsel].) We are not persuaded. The rationale for the Luce rule

applies fully here. First, in order to determine the admissibility of defendant’s

prior testimony, the court must balance its probative value against its prejudicial

effect under Evidence Code section 352, an analysis that cannot be performed

unless the record discloses the content of the defendant’s testimony. (See Luce,

supra, 469 U.S. at p. 41; Collins, supra, 42 Cal.3d at p. 384.) Second, if the

defendant does not testify, any possible harm from the trial court’s ruling is wholly

speculative. The ruling might change in response to the actual content of the

defendant’s testimony, or the prosecution might choose not to use the evidence at

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issue. (See Luce, supra, 469 U.S. at p. 41; Collins, supra, 42 Cal.3d at p. 384.)

Third, if the trial court erred in its ruling, the appellate court could not

“intelligently weigh the prejudicial affect of that error.” (Collins, supra, 42 Cal.3d

at p. 384; Luce, supra, 469 U.S. at p. 42.) Here, defendant proposed to testify that

he was remorseful more than 10 years after the offense. On the present record, it

is impossible to evaluate what effect his false testimony many years earlier might

have had on such a defense.

Defendant additionally contends the prosecutor improperly used the

circumstance of defendant’s first trial and death sentence to rebut mitigating

evidence demonstrating remorse, consisting of his offer to plead guilty and accept

a life sentence. The record does not support this contention. The prosecutor

questioned some of the defense witnesses concerning whether defendant may have

offered to plead guilty in order to avoid the death penalty, rather than because he

felt remorse. There was nothing improper in this tactic. The prosecutor’s

questions constituted a reasonable response to the defense testimony and did not

focus on the results of the first trial.





C. Denial of New Jury for Penalty Phase

Defendant asserts the trial court erred in denying his motion to impanel a

new jury at the penalty phase. He contends this error violated both California law

and his rights to due process and a fair and impartial jury under the federal

Constitution and reduced the jury’s sense of responsibility for its decision, in

violation of Caldwell v. Mississippi (1985) 472 U.S. 320 (Caldwell). In a capital

case, the jury that decides guilt is required to decide the penalty “unless for good

cause shown the court discharges that jury in which case a new jury shall be

drawn.” (§ 190.4, subd. (c).) We review the trial court’s ruling for abuse of

discretion. (People v. Kraft (2000) 23 Cal.4th 978, 1069.)

111

Defendant contends a new jury was required because the jury, having heard

during the guilt phase that defendant previously was sentenced to death, could not

impartially decide the penalty. We find no abuse of discretion. The court

instructed that defendant was being retried as the result of the decision by this

court that he did not receive a fair trial at his first trial, and that the jury was to

“disregard completely the result of that first trial in deciding upon a verdict in the

present trial.” We are not convinced it would be impossible for the jury to follow

such an instruction. In the penalty phase as in the guilt phase, the jurors heard all

the relevant evidence and were in a position to form their own conclusions based

upon that evidence. There is no reason to believe they would have felt compelled

to ignore the court’s instruction and defer to the verdict of another jury that

resulted from a prior trial.

Caldwell, supra, 472 U.S. 320, does not compel a different conclusion. In

Caldwell, the prosecutor urged the jury not to view its role as determining whether

the defendant would die, because the state Supreme Court would review the

sentence for correctness. The high court reversed the death sentence, holding that

such an argument creates a bias in favor of a death sentence and renders the jury

verdict unreliable. In a subsequent case somewhat analogous to the present one,

the high court concluded that the admission of evidence in a death penalty case

reflecting that the defendant had been convicted of a prior murder and sentenced

to death for that murder did not require reversal of the death judgment. (Romano

v. Oklahoma (1994) 512 U.S. 1 (Romano).) The court rejected the petitioner’s

argument that evidence indicating that he previously had been sentenced to death

in a different and unrelated case violated the holding of Caldwell, supra, by

diminishing the jury’s sense of responsibility for the sentencing decision. The

court in Romano reiterated that Caldwell simply requires that the jury not be

mislead into believing that the responsibility for the sentencing decision lies

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elsewhere. (Romano, supra, 512 U.S. at p. 8.) The court in Romano found

Caldwell inapplicable, because “the jury was not affirmatively misled regarding its

role in the sentencing process. The evidence at issue was neither false at the time

it was admitted, nor did it even pertain to the jury’s role in the sentencing

process.” (Id. at p. 9.)

In Romano, the high court recognized that evidence establishing that the

defendant previously had received a death sentence for another murder was not

relevant to the jury’s determination under state law. Nevertheless, the court

concluded that “if the jurors followed the trial court’s instructions, which we

presume they did [citation], this evidence should have had little ― if any — effect

on their deliberations. Those instructions clearly and properly described the

jurors’ paramount role in determining petitioner’s sentence . . . . In short, the

instructions did not offer the jurors any means by which to give effect to the

evidence of petitioner’s sentence in the [prior] murder . . . .” (Romano, supra, at

p. 13.) As in Romano, the jury instructions in the present case made clear the

jury’s responsibility to determine defendant’s penalty based upon the evidence

presented to it and did not offer the jurors any means by which to give effect to the

evidence of the prior proceedings.





D. Evidence of Other Violent Crimes

Defendant contends that the prosecutor’s notice of aggravating evidence

was deficient and, for that reason, the trial court should have excluded testimony

that defendant shot at the owner of the A & J Market during a robbery attempt on

March 6, 1979. Defendant relies on former section 190.3, which provided:

“Except for evidence in proof of the offense or special circumstances which

subject a defendant to the death penalty, no evidence may be presented by the

prosecution in aggravation unless notice of the evidence to be introduced has been

113

given to the defendant within a reasonable period of time, as determined by the

court, prior to trial.” (Stats. 1977, ch. 316, § 11, p. 1259.)

In its notice of aggravating evidence, the prosecution stated it would

present evidence establishing that on or about March 6, 1979, “defendant did

commit an act of armed robbery while armed at the A & J Market . . . .”

Defendant argues the prosecutor was required to specify more precisely what the

evidence would be, including the testimony reflecting that defendant shot at the

owner. No such requirement exists. Notice is sufficient if it affords the defendant

a reasonable opportunity to prepare a defense. (People v. Mayfield (1997) 14

Cal.4th 668, 798.) “[T]he prosecutor is not prevented from introducing all the

circumstances of a duly noticed incident or transaction simply because each and

every circumstantial fact was not recited therein.” (People v. Pride (1992) 3

Cal.4th 195, 258.) We have no doubt the notice given was sufficient to permit

counsel to prepare a defense, particularly because testimony concerning the

shooting was presented at defendant’s first trial as part of the evidence of this

attempted robbery, and the record demonstrates that defense counsel was aware of

the circumstances of the incident. For the same reason, the prosecution’s notice

that it would offer evidence indicating that defendant had committed an armed

robbery of a gas station in Salt Lake City “on or about February 15, 1979” was

sufficient even though the evidence presented was of a robbery committed on

February 5, not February 15, of that year.

Defendant asserts the trial court erred in admitting the testimony of Floyd

Cowdell reflecting that defendant had admitted returning fire after he had been

fired upon after the attempted robbery of the A & J market. Defendant asserts the

testimony was improper because the prosecution failed to establish the corpus

delicti for any crime of assault or attempted murder. As noted above, the corpus

delicti rule requires some evidence that a crime occurred, independent of the

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defendant’s own statements. (People v. Alvarez, supra, 27 Cal.4th at p. 1181.) As

also noted above, however, the quantum of evidence required is not great, and

“need only be ‘a slight or prima facie showing’ permitting an inference of injury,

loss, or harm from a criminal agency, after which the defendant’s statements may

be considered to strengthen the case on all issues.” (Ibid.) Contrary to defendant’s

argument, the shooting, which took place as defendant was fleeing from the A & J

market, was part of the attempted robbery. Evidence of the corpus delicti of that

crime was established by the testimony of one of the victims, Alaire Fivas, who

witnessed the crime and testified that she heard a gun fire shortly after defendant

ran out of the store.





E. Exclusion of Mitigating and Rebuttal Evidence

Defendant challenges the trial court’s ruling on the admissibility of

numerous items of proposed mitigating or rebuttal evidence. We find no abuse of

discretion in these rulings. We have concluded previously that evidence of the

prison conditions for those sentenced to life imprisonment without the possibility

of parole is not constitutionally or statutorily relevant as a factor in mitigation.

(People v. Sakarias (2000) 22 Cal.4th 596; People v. Quartermain (1997) 16

Cal.4th 600, 632.) The trial court did not err in precluding evidence reflecting that

the prosecutor was not seeking the death penalty against defendant’s accomplices,

because the “sentence received by an accomplice is not constitutionally or

statutorily relevant as a factor in mitigation.” (People v. Bemore (2000) 22 Cal.4th

809, 857.)

Defendant was permitted to introduce evidence establishing that he had

attempted to plead guilty and accept punishment of life imprisonment without the

possibility of parole, but he contends the trial court erred in ruling that he could

not introduce evidence of the circumstances surrounding the plea negotiations,

including the trial court’s and the prosecutor’s willingness at one point to consider

115

a sentence of life imprisonment without the possibility of parole. The trial court

did not abuse its discretion in excluding such evidence. As we previously have

held, evidence of this sort does “not bear upon defendant’s character, prior record,

or the circumstances of his offense and thus, [does] not constitute mitigating

evidence.” (People v. Zapien (1993) 4 Cal.4th 929, 989.)

Nor did the trial court abuse its discretion in excluding George Perez’s

admission that he was “deeply involved” in the murder. Evidence of this

admission was cumulative, because the jury already had heard, during the guilt

phase, evidence demonstrating that George Perez and others were involved in the

murder. Perez’s admission was not relevant mitigating evidence, because it did

not address his level of culpability in comparison with that of defendant and was

not inconsistent with the prosecution’s theory that defendant was the leader of the

group and personally had shot and killed the victim.





F. Jury Instructions







1. Moral culpability

Defendant contends the trial court erred by instructing that a mitigating

factor is “one that [is] considered as extenuating or reducing the degree of moral

culpability of the defendant and which tends to support the imposition of a

sentence of life without possibility of parole.”28 Defendant argues that the

reference in this instruction to “moral culpability” prevented the jury from

considering and giving effect to the full range of permissible mitigating evidence.

Defendant relies upon People v. Lanphear (1984) 36 Cal.3d 163

(Lanphear), in which we reversed the death sentence because of instructions that


28

The language of the instruction was based upon our explanation of

mitigating circumstances in People v. Davenport, supra, 41 Cal.3d 247.

116

explicitly precluded the jury from considering sympathy for the defendant. In

Lanphear, the jury was instructed that “ ‘[m]itigating circumstances are

circumstances that do not constitute a justification or excuse of the offense in

question, but which, in fairness and mercy, must be considered in extenuating or

reducing the degree of moral culpability.’ ” (Id. at pp. 165-166.) We rejected the

Attorney General’s argument that this instruction cured the prejudicial effect of

the no-sympathy instruction, reasoning that “the extenuation instructions given

suggested that only circumstances that lessen moral culpability are to be

considered.” (Id. at p. 166.)

An instruction defining mitigation in terms of moral culpability for the

crime might, under some circumstances (such as those present in Lanphear), lead

a jury to believe that it could consider only mitigating circumstances that related to

the defendant’s moral culpability for the crime. But such an instruction does not

require reversal if, in context of the instructions as a whole, there is no reasonable

likelihood that the jury was misled as to the scope of mitigating evidence. (See,

e.g., People v. Griffin (2004) 33 Cal.4th 536, 594 [definition of mitigating

circumstance as “an extenuating circumstance” was not misleading, when

instructions made clear that the jury could consider any aspect of the defendant’s

character or record offered by the defendant as a basis for a life sentence]; People

v. Pollock (2004) 32 Cal.4th 1153, 1189-1192 [instruction that a mitigating factor

“makes a crime less severe” was not misleading in light of other instructions that

made it clear that mitigating factors need not be related to the crime].)

Defendant’s jury specifically was instructed that “pity and sympathy for the

defendant would be a proper consideration if you should find them to be warranted

in the circumstances.” Included in the list of mitigating factors the jury was

instructed to consider was “any sympathetic aspects of the defendant’s character

or record that the defendant offers as a basis for a sentence less than death,

117

whether or not related to it [sic] offense for which he is on trial.” The jurors were

told not to “limit your consideration of mitigating factors to those specific factors.

You also may consider any other circumstances relating to the case or to the

defendant as shown by the evidence as reasons for not imposing the death

penalty.” (Italics added.) Furthermore, the jury was informed that “any one of the

mitigating factors or any other mitigating evidence standing alone may support a

decision that death is not the appropriate punishment in this case.” (Italics added.)

Accordingly, the instruction made clear that the jury could consider any

circumstance related to defendant and any sympathetic reaction to that evidence as

a basis for a life sentence.







2. Direction to assume that the death sentence would be

carried out

During deliberations, the jury asked whether, in the history of the

California justice system, there had “ever been a review or appeal or lessening of a

sentence in regard to life without the possibility of parole?” In response, the court

instructed the jury that it was not to speculate or consider matters not in evidence.

The court stated: “Whether or not there are circumstances that might preclude

either the death penalty or life without possibility of parole from being carried out,

you are to assume it would be carried out for purposes of determining the

appropriate sentence for this defendant. You are to assume that if you sentence

[defendant] to life in imprisonment without the possibility of parole he will spend

the rest of his life in state prison, and you are to assume that if you sentence

[defendant] to death he will be executed in the gas chamber.” Defendant objected

to this instruction at trial, and challenges it here, to the extent the instruction

acknowledged that circumstances might preclude the punishment from being

carried out.

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Informing a jury that “whether or not there were circumstances that might

preclude either the death penalty or life without possibility of parole from being

carried out, [the jury] should assume it would be carried out for determining the

appropriate sentence for this defendant” is proper. (People v. Thompson, supra,

45 Cal.3d 86, 131; see also People v. Davis (1995) 10 Cal.4th 463, 547-548 [trial

court properly instructed jury, in response to question, that Governor could

commute either sentence]; People v. Ramos (1984) 37 Cal.3d 136, 159, fn. 12 [if

jury inquires about commutation, court should instruct that Governor may

commute either sentence, but jury must not consider possibility of commutation].)

The trial court’s instruction in the present case conformed to Thompson and was

not inaccurate, prejudicial, or misleading.

Defendant also argues that the question itself was evidence of juror

misconduct in that it revealed the jurors were considering facts outside the

evidence — whether a sentence of life imprisonment without possibility of parole

actually would be carried out. Because the trial court failed to conduct a hearing

to determine the scope of this asserted misconduct, defendant contends, this

evidence of misconduct raises a presumption of prejudice that has not been

rebutted and requires reversal.

When a court is “put on notice that good cause to discharge a juror may

exist,” it is required to conduct an inquiry to determine the facts. (People v.

Burgener (1986) 41 Cal.3d 505, 519; see People v. Davis, supra, 10 Cal.4th 463,

547.) In appropriate circumstances a trial judge may conclude, based on a juror’s

willful failure to follow an instruction, that the juror will not follow other

instructions and is therefore unable to perform his or her duty as a juror. (See,

e.g., People v. Daniels (1991) 52 Cal.3d 815, 864 [upholding the trial court’s

removal of a juror who had discussed the case with others and who had expressed

an opinion on the issue of guilt].) But the jury’s question in the present case

119

cannot reasonably be construed as demonstrating that the jurors were unable or

unwilling to follow the court’s instructions. The circumstance that the jurors

asked the trial judge for clarification suggests they merely were seeking to

understand the meaning of the instructions they had been given and were unaware

that discussion of such matters was improper. Because the trial court had no basis

for doubting the jurors’ ability or willingness to follow its instructions, further

inquiry was not required. To the extent the jury's question suggested that

jurors had been speculating about how the punishment of life imprisonment

without parole had been implemented in the past, the trial court’s instruction

directing them not to do so was a sufficient response.





F. Refusal of Instructions Proposed by the Defense

We find no merit in defendant’s arguments that the trial court erred in

refusing a number of instructions proposed by the defense.

The trial court properly denied instructions proposed by the defense that

would have required the jury to “weigh” aggravating and mitigating factors. (See

People v. Murtishaw (1989) 48 Cal.3d 1001, 1025 [trial court erred in giving

instructions based on 1978 death penalty law in case to which 1977 law applied].)

The 1977 death penalty law under which defendant was tried did not require

specifically that the jury “weigh” aggravating factors, and the jury was instructed,

in accordance with that statute, to “consider, take into account and be guided by”

the aggravating and mitigating circumstances. (See former § 190.3, added by

Stats. 1977, ch. 316, § 11, p. 1260.) Furthermore, we have noted that “there may

well be no significant difference between” the 1977 law’s requirement that the

jury “consider” the aggravating and mitigating factors and the 1978 law’s

requirement that the jury “weigh” these factors. (People v. Easley (1983) 34

Cal.3d 858, 884, fn. 19; Murtishaw, supra, 48 Cal.3d at pp. 1027-1028, fn. 12.)

Because the jury was not instructed to weigh aggravating and mitigating factors,

120

defendant’s further request for an instruction that the jury could return a verdict of

life imprisonment without the possibility of parole even if the aggravating factors

outweighed the mitigating factors was irrelevant and unnecessary.

The trial court properly refused to instruct that if the jurors had a doubt

concerning which penalty to impose, they must return a verdict of life

imprisonment without the possibility of parole. We consistently have held that

“[b]ecause the determination of penalty is essentially moral and normative . . .

there is no burden of proof or burden of persuasion.” (People v. Hayes (1990) 52

Cal.3d 577, 643; People v. Williams (1988) 44 Cal.3d 883, 960 [in case tried under

1977 death penalty law, trial court did not err in instructing the jury at penalty

phase that the prosecution had no burden of proof].) “The jurors cannot escape the

responsibility of making the choice by finding the circumstances in aggravation

and mitigation to be equally balanced and then relying on a rule of law to decide

the penalty issue.” (Hayes, supra, 52 Cal.3d at 643.)

The court was not required to instruct the jury that it could “spare the

defendant’s life for any reason you deem appropriate and satisfactory.” The jury

was fully instructed concerning the scope of its discretion to impose a sentence of

life imprisonment without the possibility of parole based on any evidence it

deemed appropriate. The jury was instructed that it could consider, in addition to

the mitigating factors listed, “any other circumstances relating to the case or to the

defendant as shown by the evidence as reasons for not imposing the death penalty.

Any one of the mitigating factors or other mitigating evidence standing alone may

support a decision that death is not the appropriate punishment in this case.” (See

People v. Kimble (1988) 44 Cal.3d 480, 510 [court did not err in instructing jury to

base its penalty determination on evidence presented during the trial rather than on

factors unrelated to such evidence].)

121

Nor did the court err in refusing defendant’s proposed instruction that the

jurors were “not to be governed by conjecture, prejudice, public opinion, or public

feeling.” The substance of this instruction was covered in other instructions. At

the guilt phase, the jury was instructed not to be “influenced by mere sentiment,

conjecture, sympathy, passion, prejudice, public opinion, or public feeling.” At

the penalty phase, the jury was told to consider the instructions given during the

guilt phase, but that the instruction previously given not to be influenced by pity or

sympathy for the defendant did not apply. (See People v. Babbitt (1988) 45

Cal.3d 660, 718, fn. 26; People v. Weaver, supra, 26 Cal.4th 876, 982.)





G. Prosecutor’s Argument

Defendant contends the prosecutor committed misconduct in his closing

argument at the penalty phase. The same standards discussed above in relation to

the guilt phase apply at the penalty phase. In addition, as noted above, as a

general matter a claim of prosecutorial misconduct is preserved for appeal only if

the defendant objects in the trial court and requests an admonition, or if an

admonition would not have cured the prejudice caused by the prosecutor’s

misconduct. (People v. Medina, supra, 11 Cal.4th at p. 761; People v. Fiero,

supra,1 Cal.4th at p. 211; People v. Ratliff, supra, 41 Cal.3d at p. 690.) To the

extent defendant failed to object to some of the prosecutor’s arguments, those

claims are forfeited. Nevertheless, as explained below, we conclude there was no

misconduct.

1.



Caldwell

error

Defendant argues the prosecutor improperly attributed responsibility for a

death verdict to the court process, society, the Catholic church, and defendant

himself, all in violation of the high court’s direction in Caldwell, supra, 472 U.S.

320, that a death sentence is invalid if the penalty jury “has been led to believe that

122

the responsibility for determining the appropriateness of the defendant’s death

rests elsewhere.” (Id. at p. 329.)

We find no violation of the principles established in Caldwell. Defendant’s

argument is “at once excessively subtle in its consideration of the words of the

summation in the abstract and insufficiently precise in its treatment of the

language in its context.” (People v. Clair, supra, 2 Cal.4th at p. 686.) The

prosecutor commented that every fairness had been extended to the defendant, and

that “the decisions that will be reached eventually in this case” would not be made

hastily or without adequate reflection. In context, this comment was a reference to

the decision the jurors were to make, not to a decision by a court or any other

entity that might review their verdict.

The prosecutor referred to the testimony of a priest who had testified for

defendant, noting that, according to the priest, it was appropriate in his religion for

the state to employ the death penalty to protect society or deter crime. The

prosecutor pointed out that the priest who testified was unaware of the

circumstances of the crime, but that the jury was aware, and he asked the jury to

use “that analysis” to evaluate the witness-killing special circumstance. This was

a fair comment on the defense evidence and could not have diminished the jury’s

sense of responsibility for the death penalty verdict.

Several times, the prosecutor referred to the jury as the “conscience of the

community” or as representatives of the community. Such a comment is not

improper. (See Caldwell, supra, 472 U.S. at p. 333 [jury is called upon to “decide

that issue on behalf of the community”].)

Finally, the prosecutor did not engage in misconduct in arguing that

defendant had brought the death penalty upon himself that there was only one

appropriate penalty and it was “the one he selected through his very conduct, and

that’s the death penalty.” An argument that the defendant is responsible for

123

choosing to engage in conduct that deserves the death penalty is not improper.

(See People v. Hayes (1999) 21 Cal.4th 1211, 1283; People v. Arias (1996) 13

Cal.4th 92, 180.)







2. Appeal to jury’s passions and prejudice

Defendant contends the prosecutor appealed to the jury’s fears, passions,

and prejudices in arguing that the witness-killing special circumstance was a very

serious aggravating factor because it was a threat to the criminal justice system, a

killing “designed to simply destroy a system that all of us have the right to expect

comfort and support and protection from.” This argument was not improper. The

prosecutor did not suggest that the jurors’ lives would be directly threatened if

defendant were not executed; he merely argued that the witness-killing special

circumstance made defendant’s crime particularly offensive to organized society

and morally reprehensible.







3. Comment on lack of remorse

We find no merit in defendant’s contention that the prosecutor commented

on defendant’s failure to testify, in violation of the Fifth and Fourteenth

Amendments as construed in Griffin v. California, supra, 380 U.S. 609. The

prosecutor argued that defendant’s evidence of remorse was unconvincing because

he had not fully accepted responsibility for his crimes. Numerous defense

witnesses testified that defendant had expressed remorse about the crime but none

testified that he had admitted what he had done; indeed, they testified that he had

refused to discuss his involvement or claimed not to be able to recall what had

happened. For example, Dr. Rosenthal testified that defendant was upset that

someone was killed and that he was involved, but claimed not to remember any

specific thing that he had done. Similarly, Mr. Shiraldi testified that defendant felt

responsible for what had happened and felt remorse, but that defendant claimed

not to recall what had happened. Father Wood testified that defendant had

124

admitted committing “a crime” and had said he was sorry. The prosecutor’s

argument was not a reference to defendant’s failure to testify but was a fair

comment on the defense evidence of remorse.







4. Comment on matters not in evidence

Defendant contends the prosecutor committed misconduct by encouraging

the jury to speculate about matters not in evidence, in contravention of the trial

court’s rulings that prohibited the prosecutor from introducing evidence of

defendant’s nonviolent crimes, his incarceration as a juvenile, and a period of

absence without leave while he was in the Army. In order to avoid opening the

door to the prosecutor’s presentation of evidence of these incidents in rebuttal, the

defense did not present evidence of defendant’s life history between 1965, when

he was 14 years of age, until 1971, when he began living with his wife. The

prosecutor pointed out this gap in the evidence, referring to these as the “lost

years.” He stated the jury should not speculate about what happened during those

years, but argued that defendant had presented only a partial picture of himself,

and that the jury really did not know much about him. This was a fair comment on

the evidence.





I. Discharge of Juror Stephen W.

Defendant contends the trial court erred in discharging juror Stephen W.

during the penalty phase deliberations. On the morning of the fourth day of

deliberations, the jury sent a note to the court indicating that one of the jurors had

discussed the case with a family member. The court convened a hearing at which

the juror, Stephen W., admitted that he had violated the instructions of the court by

discussing the case with his wife. He stated that he needed to “straighten things

out in [his] head,” and in the process of “trying to sort the facts out” he had

recounted the story of the case to his wife. He explained that his wife told him

that he had a difficult decision to make and “gave some opinion [sic] which left

125

me with the same decision that I had before.” The juror testified that this

discussion allowed him to think more clearly. Over defense objection, the trial

court excused Stephen W. and seated an alternate juror. The court stated that

Stephen W. deliberately and consciously had violated the court’s order not to

discuss the case outside of jury deliberations. The juror had a doubt about his

opinion and voiced that doubt to someone outside the jury’s deliberations, and his

doubt was removed by that discussion.

The court may discharge a juror and substitute an alternate if it finds a juror

is unable to perform his or her duty. (§ 1089.) A trial court’s decision to

discharge a juror for misconduct is reviewed for abuse of discretion, and is upheld

if supported by substantial evidence. (People v. Williams (2001) 25 Cal.4th 441,

447; People v. Cleveland, supra, 25 Cal.4th at p. 474; People v. Marshall (1996)

13 Cal.4th 799, 843.) The juror’s inability to perform must “ ‘ “appear in the

record as a demonstrable reality.” ’ ” (Marshall, supra, 13 Cal.4th at p. 843.)

Stephen W. admitted that he had discussed the case with his wife in

violation of the court’s admonition ― an act that constitutes deliberate

misconduct. (See § 1122, subd. (a).) “[A] juror’s serious and willful misconduct

is good cause to believe that the juror will not be able to perform his or her duty.”

(People v. Daniels, supra, 52 Cal.3d 815, 864.) In Daniels, this court upheld the

removal of a juror who had discussed the case with others and who had expressed

an opinion on the issue of guilt, stating that “a judge may reasonably conclude that

a juror who has violated instructions to refrain from discussing the case . . . cannot

be counted on to follow instructions in the future.” (Id. at p. 865.) The trial

court’s conclusion that Stephen W.’s misconduct rendered him unable to perform

his duty as a juror is supported by substantial evidence.

Defendant further asserts that the trial court erred in refusing defendant’s

request to discharge the entire penalty phase jury after it discharged juror

126

Stephen W., the defense having claimed that the remaining jurors would be

incapable of starting penalty deliberations anew. The trial court instructed the jury

in accordance with People v. Collins (1976) 17 Cal.3d 687, 694, that the parties

have a right to a verdict reached only after full participation by all twelve jurors,

and that they must disregard their past deliberations and begin deliberations anew.

As we stated in Collins, “We are confident that juries made aware of the rights

involved will faithfully follow such instructions.” (Ibid.) Defendant provides no

reason for us to doubt that the jury in this case was able to follow the court’s

instructions.





J. Motion to Modify the Death Verdict

The trial court denied defendant’s motion to reduce his sentence to life

imprisonment without the possibility of parole under section 190.4, subdivision

(e). In its written findings, the trial court reviewed all of the relevant aggravating

and mitigating factors, concluding that “the jury on the weight of the evidence and

the law reached a just and proper verdict.” The court also found “personally and

independently . . . that the death penalty is proper in this case.” The court did not

take into account the lesser punishments received by defendant’s accomplices,

noting that proportionality was not a proper factor for consideration.

Nevertheless, the court stated that it agreed with Justice Mosk’s dissenting opinion

in People v. Carrerra (1989) 49 Cal. 3rd 291, 347, which stated that intracase

proportionality should be considered by trial judges in ruling on section 190.4,

subdivision (e) motions. The court commented that the other individuals involved

in the crime were “getting away with murder” and that the prosecutor “should

have, in all fairness, accepted [defendant’s] offer to plead guilty with a penalty of

Life Imprisonment without Possibility of Parole.”

Defendant contends the trial court erred by (1) failing to “weigh” the

aggravating and mitigating factors, and (2) considering the shooting in Utah as a

127

factor in aggravation. We have rejected both of these arguments above with

respect to the jury’s verdict and accordingly, for the same reasons, find no error in

the trial court’s ruling.

Defendant also contends that reconsideration of the section 190.4,

subdivision (e) motion is required because in conducting its review the court

considered an invalid robbery special circumstance. In discussing section 190.3,

factor (a), “[t]he circumstances of the crime . . . and the existence of any special

circumstances,” the court made no mention of the robbery special circumstance.

Rather, the court gave weight to “a complete lack of mercy in the execution of the

hapless victim.” We find no reasonable possibility that the court’s ruling would

have been different had the robbery special circumstance not been found true.

The trial court did not err in concluding that the lesser punishment given to

defendant’s accomplices was not an appropriate factor for its consideration. This

court will undertake “intracase” proportionality review “to determine whether the

death penalty is disproportionate to [the defendant’s] personal culpability.”

(People v. Anderson (2001) 25 Cal.4th 543, 602.) Although such proportionality

analysis takes into account the defendant’s relative responsibility for the crime as

compared to others who were involved, the disposition of codefendants’ cases is

not part of the analysis. (See People v. Vieira (2005) 35 Cal.4th 264, 302;

People v. Riel (2000) 22 Cal.4th 1153, 1223.)





K. Discretion to Strike Special Circumstances

Defendant contends that the case must be remanded to afford the trial court

the opportunity to strike the special circumstance findings in furtherance of justice

under section 1385, subdivision (a), for the limited purpose of imposing a sentence

128

of life imprisonment without the possibility of parole.29 He argues that because

the trial court had the authority to strike the special circumstances and impose a

sentence of life imprisonment with the possibility of parole (see People v.

Williams (1981) 30 Cal.3d 470), a fortiori the court must have had the authority to

strike the special circumstances for the limited purpose of imposing a punishment

of life imprisonment without the possibility of parole. Defendant cites no

authority to support his contention that the court may strike a special circumstance

finding for such a purpose, and we find none. If the special circumstance findings

had been stricken, the court would have been required to impose a lawful sentence

as authorized by the remaining verdicts and special findings. A sentence of life

without the possibility of parole would not have been authorized in the absence of

a true finding on at least one of the special circumstance allegations.





L. Cruel and Unusual Punishment

Defendant contends on several grounds that his death sentence constitutes

cruel and unusual punishment under the Eighth Amendment to the federal

Constitution and article I, section 17 of the California Constitution. We disagree.

The circumstance that George and Jesse Perez were allowed to plead guilty to the

charge of accessory after the fact does not affect defendant’s individual culpability

and thus does not render defendant’s death sentence cruel and unusual

punishment. (See People v. Hill (1992) 3 Cal.4th 959, 1013-1014.) A 25-year

delay in carrying out the sentence does not render it cruel and unusual. (People v.

Hill, supra, 3 Cal.4th at pp. 1015-1016.) Defendant’s contention that it would be


29

Section 1385.1, which prohibits a court from striking a special

circumstance finding, was not adopted until June 5, 1990, and therefore does not
apply to defendant’s case. (See Tapia v. Superior Court, supra, 53 Cal.3d 282,
298-299 & fn. 17.)

129

unconstitutional to execute him after this long period, because he now is a

different person, cannot be resolved based on the record. (See People v. Barnett

(1998) 17 Cal.4th 1044, 1183.) Execution by the administration of lethal gas does

not constitute cruel or unusual punishment. (In re Anderson (1968) 69 Cal.2d 613,

631-632.) In any event, defendant instead may choose to be executed by lethal

injection. (§ 3604.)

IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Defendant contends that, in numerous respects, his trial attorney rendered

constitutionally ineffective assistance at both the guilt and penalty phases of the

trial. In order to establish a claim of ineffective assistance of counsel, defendant

bears the burden of demonstrating, first, that counsel’s performance was deficient

because it “fell below an objective standard of reasonableness . . . under prevailing

professional norms.” (Strickland v. Washington, supra, 466 U.S. 668, 688;

Ledesma I, supra, 43 Cal.3d at p. 215-216.) Unless a defendant establishes the

contrary, we shall presume that “counsel’s performance fell within the wide range

of professional competence and that counsel’s actions and inactions can be

explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th

1166, 1211.) If the record “sheds no light on why counsel acted or failed to act in

the manner challenged,” an appellate claim of ineffective assistance of counsel

must be rejected “unless counsel was asked for an explanation and failed to

provide one, or unless there simply could be no satisfactory explanation.” (People

v. Pope (1979) 23 Cal.3d 412, 426; see In re Avena (1996) 12 Cal.4th 694, 721.)

If a defendant meets the burden of establishing that counsel’s performance was

deficient, he or she also must show that counsel’s deficiencies resulted in

prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” (Strickland, supra,

466 U.S. at p. 694.)

130

As explained below, we conclude that defendant has failed to establish that

defense counsel rendered constitutionally ineffective assistance. We do not

address each of defendant’s numerous allegations of deficient performance in

detail, because all of these claims suffer from the same defect — the present

record does not preclude the possibility that defense counsel’s actions were based

upon reasonable strategic decisions. As we repeatedly have emphasized, unless

the record reflects the reason for counsel’s actions or omissions, or precludes the

possibility of a satisfactory explanation, we must reject a claim of ineffective

assistance raised on appeal. (People v. Mendoza Tello (1997 15 Cal.4th 264, 266-

267.) Such claims are more appropriately addressed in a habeas corpus

proceeding. (Ibid.)

Turning to these claims, defendant asserts that his attorney rendered

ineffective assistance in failing to research adequately the relevant law and bring a

variety of pretrial or in limine motions before making strategic decisions as to

which defenses to present. He contends, for example, that counsel should have

litigated the permissible use of material from the first trial and from the habeas

corpus hearing (including Dr. Glathe’s testimony), the admissibility of certain

evidence related to the theory that Joe Guerra committed the crimes (such as the

results of his polygraph examination), and the admissibility of the photographic

lineup from which the victim Flores identified defendant as the robber at the

Hudson gas station. Defendant contends that pretrial rulings on such matters were

critical to enable counsel to decide which defenses to present at trial, how to

conduct effective voir dire of the prospective jurors, and how to avoid opening the

door to damaging rebuttal evidence.

The record does not reveal the extent of the research conducted by defense

counsel on the subjects of these motions, and we cannot draw the conclusion that

counsel failed to research the law adequately. Nor can we conclude on the present

131

record that no reasonable counsel would have chosen to proceed without obtaining

pretrial rulings. “[T]he means of providing effective assistance are many and . . .

as a consequence counsel has wide discretion in choosing which to use.”

(Ledesma I, supra, 43 Cal.3d at p. 216.) The trial court would have acted within

its discretion in declining to make a pretrial ruling without hearing the witnesses’

testimony. To the extent the evidence at issue was admitted to impeach defense

witnesses, or was presented by the defense, counsel may have been unwilling to

give the prosecution the benefit of a preview of the defense case in order to obtain

such rulings.

Defendant also contends his counsel performed unreasonably in choosing

to present inconsistent defenses — on the one hand reasonable doubt and potential

third party culpability, and on the other hand diminished capacity. He asserts

counsel’s conduct was particularly deficient in the absence of a pretrial court

ruling on the admissibility of defendant’s confession to Dr. Glathe. Again,

however, on the present record we have no basis for second-guessing trial

counsel’s decision.

Defendant complains that his counsel initially chose to keep from the jury

the fact that defendant previously was convicted and sentenced to death for the

same offense and accordingly failed to conduct voir dire on that subject, and that

counsel followed this course of action without taking appropriate steps to ensure

that knowledge of the prior proceedings would not be revealed to the jurors.

Similarly, defendant complains that counsel presented a penalty phase defense that

necessarily revealed to the jury defendant’s prior conviction and custody status

without ascertaining, through voir dire, what impact these circumstances would

have on the jury. “[I]f the record does not preclude a satisfactory explanation for

counsel’s actions, we will not, on appeal, find that trial counsel acted deficiently.”

(People v. Stewart, supra, 33 Cal.4th 425, 459.) In the present appeal, we have no

132

basis upon which to conclude that defense counsel failed to pursue a reasonable

tactical choice in deciding not to bring these matters to the jury’s attention at an

early stage of the proceedings, but instead to rely upon the general voir dire and

the court’s instructions to ensure that the jurors would be impartial and consider

only relevant matters. (See Stewart, supra, 33 Cal.4th at p. 459.)

Defendant contends trial counsel rendered ineffective assistance by

presenting certain evidence that opened the door to damaging rebuttal. In this

category, defendant challenges, for example, defense counsel’s decisions to

present (1) the testimony of expert witnesses who had considered Dr. Glathe’s

report, leading to the admission of Dr. Glathe’s testimony concerning defendant’s

confession; (2) evidence that Joe Guerra may have committed the offenses, which

bolstered the credibility of prosecution witness Jona Cardona (who named Guerra

as one of defendant’s accomplices in the murder); (3) the testimony of a social

worker at the penalty phase whose omission of certain damaging portions of

defendant’s social history allegedly was exploited by the prosecution; and (4) the

testimony of a Father Wood, which injected the position of the Catholic Church on

the death penalty into the proceedings and was used against the defense in the

prosecutor’s argument. In each of these and other related instances of allegedly

ineffective assistance, the evidence at issue was of some obvious benefit to the

defense. Accordingly, on this record, we cannot conclude that defense counsel

had no reasonable basis for presenting it.

Defendant contends his counsel rendered ineffective assistance in argument

to the jury at the penalty phase discussing uncharged special circumstances that

the jury may have concluded were applicable to defendant’s case, including

kidnapping, financial gain, and atrocious or heinous acts. Defense counsel listed

the various special circumstances in the context of arguing that the law makes the

death penalty available in a wide variety of circumstances, but that it is not

133

imposed automatically for any offense and should be reserved for only the worst

offenders. The mere circumstance that a different, or better, argument could have

been made is not a sufficient basis for finding deficient performance by defense

counsel. (People v. Coddington, supra, 23 Cal.4th 529, 655; People v. Mincey

(1992) 2 Cal.4th 408, 471.)

Finally, defendant makes a number of additional claims of ineffective

assistance of counsel related to various contentions, discussed above, of error in

the court’s rulings or instructions or misconduct by the prosecutor. Defendant

contends that, in numerous instances, his counsel performed deficiently in failing

to make objections, request instructions, or cite relevant law. Because we have

addressed the merits of the underlying contentions and have concluded, above,

that the actions at issue were not erroneous or improper, that the instructions were

not warranted, or that any alleged error was not prejudicial, defendant’s related

claims of ineffective assistance of counsel fail and do not require further

discussion.

V. DISPOSITION

The judgment is reversed as to the robbery charge set forth in count three;

the robbery special circumstance is set aside, and the judgment as to guilt and

penalty is otherwise affirmed.

GEORGE, C. J.

WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


134



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Ledesma
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S014394
Date Filed: August 17, 2006
__________________________________________________________________________________

Court:
Superior
County: Santa Clara
Judge: Paul R. Teilh

__________________________________________________________________________________

Attorneys for Appellant:

Donald M. Thommen and Jeffrey J. Stuetz, under appointments by the Supreme Court, for Defendant and
Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A Bass,
Assistant Attorney General, Ronald S. Matthias, Moona Nandi and Karl S. Mayer, Deputy Attorneys
General, for Plaintiff and Respondent.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeffrey J. Stuetz
PMB 288
33440 Youngfield Street
Wheat Ridge, CO 80033
(303) 431-3678

Moona Nandi
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5865


Opinion Information
Date:Docket Number:
Thu, 08/17/2006S014394

Parties
1The People (Respondent)
Represented by Attorney General - San Francisco Office
Moona Nandi, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Ledesma, Fermin Rodriguez (Appellant)
Represented by Terry J. Amdur
Attorney at Law
1939 Rose Villa St.
Pasadena, CA

3Ledesma, Fermin Rodriguez (Appellant)
Represented by Jeffrey J. Stuetz
Attorney at Law
3440 Youngfield Street, PMB 288
Wheat Ridge, CO


Disposition
Aug 17 2006Opinion filed

Dockets
Feb 7 1990Judgment of death
 
Mar 5 1990Filed certified copy of Judgment of Death Rendered
  2-7-90.
Mar 5 1990Application for Extension of Time filed
  By Court Reporters to Complete R.T.
Mar 5 1990Extension of Time application Granted
  To Court Reporters To 3-29-90 To Complete R.T.
Mar 23 1990Application for Extension of Time filed
  By Court Reporters to Complete R.T.
Mar 27 1990Extension of Time application Granted
  To Court Reporters To 4-30-90 To Complete R.T.
Apr 2 1990Application for Extension of Time filed
  By Court Reporters to Complete R.T.
Apr 5 1990Extension of Time application Granted
  To Court Reporters To 4-30-90 To Complete R.T.
Apr 20 1990Application for Extension of Time filed
  By Court Reporters to Complete R.T.
Apr 23 1990Extension of Time application Granted
  To Court Reporters To 5-30-90 To Complete R.T.
May 30 1990Application for Extension of Time filed
  By Court Reporters to Complete R.T.
Jun 1 1990Extension of Time application Granted
  To Court Reporters To 6-29-90 To Complete R.T.
Jul 2 1990Application for Extension of Time filed
  By Court Reporters (Constant and Sugino) to Complete R.T.
Jul 6 1990Extension of Time application Granted
  To Court Reporters To 7-30-90 To Complete R.T.
Aug 1 1990Application for Extension of Time filed
  By Court Reporter to Complete R.T.
Aug 3 1990Extension of Time application Granted
  To Court Reporters To 9-10-90 To Complete R.T.
Feb 11 1993Counsel appointment order filed
  Jeffrey J. Stuetz, Esq. Is Appt'd to represent Applt on A.A., Including Any Related Habeas Proceedings.
Oct 20 1993Filed:
  Applt's Applic. for Relief from Default & Applic. for Ext. of time to request correction of Record.
Oct 29 1993Order filed:
  Applic. of Applt for Relief from Default for Failure to Timely file on or before 6-8-93, A request for Ext. of time to request correction of The Record, Is Granted. Applt granted to 12-13-93 to request correction of Record on Appeal. in The Future, should Counsel have Any Question with Regard to the Proper Applic. of the Rules of Court as Explained by the Office of the Clerk, Counsel Must Promptly Bring the Matter to The Court's Attention in Writing. A request for Default Occasioned by Counsel's Failure in this Regard Will not be Granted. Counsel Is Further Ordered to Notify the Clerk of the Supreme Court in Writing as Soon as the Act as to which the Court has granted an Extension of time has Been Completed.
Dec 13 1993Received:
  Copy of Applt's request for correction & Additional Record, to Examine Sealed Record, & Settle Record (filed in Superior Court) (37 Pp.)
Mar 16 1994Compensation awarded counsel
 
Jun 22 1994Compensation awarded counsel
 
Jan 18 1995Compensation awarded counsel
 
Feb 1 1995Compensation awarded counsel
 
May 25 1995Filed:
  Applt's Applic. for appointment of Second Counsel.
May 31 1995Order filed:
  The application of appellant for appointment of second counsel is granted. Donald M. Thommen, Esq., is hereby appointed as associate counsel to represent appellant on his automatic appeal now pending in this court, including any related proceedings.
Nov 13 1995Compensation awarded counsel
 
Jan 17 1996Compensation awarded counsel
 
Apr 5 1996Motion filed
  By Applt to Compel Compliance with Penal Code Section 1240.1 (12 Pp. Excluding Exhibits).
Apr 24 1996Compensation awarded counsel
 
May 15 1996Order filed:
  The motion of Appellate Counsel for Applt "to Compel Compliance with Penal Code Section 1240.1" Is denied. At The Present Stage of The Proceedings, Trial Counsel Is not Required to Review the Entire Record, in Addition to the Review Undertaken by Appellate Counsel, But Is Required to Assist with the correction of errors or Omissions in the Record that have been Identified by Appellate Counsel & to Facilitate The Preparation of Necessary Settled Statements of Proceedings in which Trial Counsel participated.
Aug 19 1996Compensation awarded counsel
 
Nov 25 1996Compensation awarded counsel
 
Feb 25 1997Change of Address filed for:
  Applt Counsel Jeffrey J. Stuetz
Mar 12 1997Compensation awarded counsel
 
Jul 18 1997Compensation awarded counsel
 
Sep 15 1997Motion filed
  By Applt for Additonal Record (8 Pp.)
Sep 18 1997Filed:
  Response to motion for Additional Record (3 Pp.)
Oct 2 1997Filed:
  Reply to response to motion for Additional Record.
Oct 29 1997Order filed:
  and H005911 that were filed with or served upon the superior court to become part of the appellate Appellant's "Motion for Additional Record for Automatic Capital Appeal" is granted as specified herein. The Santa Clara County Superior Court is hereby directed to: 1. Cause transcripts of the electronic recording identified as People's Exhibits 5, 6, and 19 and Defendant's Exhibit L to be prepared and included in the clerk's transcript. (Cal. Rules of Court, rule 203.5.) 2. Cause any documents related to extraordinary writ proceedings H004068, H004310, H004361, record. 3. Cause any reported hearings concerning the foregoing writ proceedings to be transcribed and included in the reporter's transcript. 4. Cause any existing record of the contents of oaths administered to prospective jurors, jurors, alternate jurors, and the bailiff to be transcribed and/or reproduced and included in the appellate record. 5. Provide appellate counsel with copies of all exhibits that are capable of reproduction. 6. Provide appellate counsel with copies of all charts, diagrams, or other audio-visual aids used by either counsel during argument or examination of witnesses, to the extent such items are presently in the custody of the clerk of the superior court and capable of reproduction.
Dec 10 1997Compensation awarded counsel
 
Jul 1 1998Record on appeal filed
  C-17 (4,715 Pp.) and R-58 (9,637 Pp.); Clerk's Transcript includes 1,504 pages of Juror Questionnaiers.
Jul 1 1998Appellant's opening brief letter sent, due:
  8-10-98.
Aug 4 1998Application for Extension of Time filed
  To file Aob.
Aug 7 1998Extension of Time application Granted
  To 10-9-98 To file AOB
Sep 30 1998Application for Extension of Time filed
  To file Aob.
Sep 30 1998Extension of Time application Granted
  To 12-8-98 To file Aob.
Dec 3 1998Application for Extension of Time filed
  To file Aob.
Dec 9 1998Extension of Time application Granted
  To 2-8-99 To file AOB
Dec 16 1998Compensation awarded counsel
 
Jan 13 1999Compensation awarded counsel
 
Feb 5 1999Application for Extension of Time filed
  To file Aob.
Feb 11 1999Extension of Time application Granted
  To 4-9-99 To file Aob.
Apr 6 1999Application for Extension of Time filed
  By Applt to file AOB
Apr 12 1999Extension of Time application Granted
  To 6-9-99 To file AOB
Jun 8 1999Application for Extension of Time filed
  To file Aob.
Jun 14 1999Extension of Time application Granted
  To 8-9-99 To file AOB
Aug 3 1999Application for Extension of Time filed
  To file Aob.
Aug 5 1999Extension of Time application Granted
  To 10-8-99 To file AOB
Oct 6 1999Application for Extension of Time filed
  To file Aob.
Oct 15 1999Extension of Time application Granted
  To 12/7/99 To file Aob.
Dec 7 1999Application for Extension of Time filed
  To file Aob.
Dec 15 1999Extension of Time application Granted
  To 2/7/2000 To file Aob.
Feb 7 2000Application for Extension of Time filed
  To file Aob.
Feb 28 2000Filed:
  Suppl Declaration in support of Eot request to file Aob.
Mar 2 2000Extension of Time application Granted
  To 4/7/2000 To file Aob. (Based on Counsel's Estimation that He will be Able To file AOB by June 2000)
Apr 4 2000Application for Extension of Time filed
  To file Aob.
Apr 13 2000Extension of Time application Granted
  Based on Counsel's representation that He will be Able to file AOB in this Matter by June 2000, Applt's request for an Ext. of time to file the Brief Is granted to and Including 6-6-2000.
Jun 5 2000Application for Extension of Time filed
  To file Aob.
Jun 12 2000Extension of Time application Granted
  To 8/7/2000 To file Aob.
Aug 7 2000Application for Extension of Time filed
  for 7 day ext. of time to file AOB.
Aug 8 2000Extension of Time application Granted
  To 8/14/2000 to file AOB. No further ext. of time will be granted.
Aug 14 2000Application to file over-length brief filed
  Applt's request to file a 1,307 page AOB. (AOB submitted under separate cover)
Aug 14 2000Request for Judicial Notice filed
  (Calif. Supreme Court records-crim. no. 21436 and 23178)
Aug 30 2000Order filed:
  The applic. to file an oversize AOB of 1,307 pp. is denied. The brief shall be returned to counsel for revision and resubmission of a new brief. (Cal. Rules of Ct., rule 18.) Good cause appearing for the filing of an oversize brief in this matter based upon the number and complexity of issues raised, defendant shall have 120 days from the date of this order to serve and file a new brief not to exceed 600 pp. (Id., rule 37, subd. (c).)
Sep 26 2000Counsel's status report received (confidential)
 
Dec 21 2000Application for Extension of Time filed
  To file AOB. (14th request)
Jan 2 2001Extension of Time application Granted
  To 2/26/2001 to file AOB. No further ext. of time are contemplated.
Jan 5 2001Compensation awarded counsel
  Atty Stuetz
Feb 26 2001Application for Extension of Time filed
  To file AOB. (15th request)
Mar 2 2001Extension of Time application Granted
  To 4/27/2001 to file AOB. No further ext. of time will be granted
Apr 23 2001Appellant's opening brief filed
  (4 vols. - 599 Pp.)
May 9 2001Counsel's status report received (confidential)
  from assoc. counsel Thommen regarding habeas corpus preparation.
May 23 2001Application for Extension of Time filed
  To file respondent's brief. (1st request)
May 24 2001Extension of Time application Granted
  To 7/23/2001to file respondent's brief.
Jul 23 2001Application for Extension of Time filed
  To file resp.'s brief. (2nd request)
Jul 25 2001Extension of Time application Granted
  To 9/21/2001 to file resp.'s brief.
Aug 15 2001Compensation awarded counsel
  Atty Stuetz
Sep 17 2001Application for Extension of Time filed
  To file resp.'s brief. (3rd request)
Sep 20 2001Extension of Time application Granted
  11/20/2001 to file resp.'s brief.
Nov 19 2001Request for extension of time filed
  To file resp.'s brief. (4th request)
Nov 27 2001Extension of time granted
  To 1/22/2002 to file resp.'s brief. After that date only 2 furhter extensions will be granted for a total of 120 additional days will be granted.
Dec 11 2001Counsel's status report received (confidential)
  from atty Stuetz.
Jan 7 2002Counsel's status report received (confidential)
 
Jan 14 2002Motion filed
  For appointment of special counsel to represent applt. for the limited purpose of advising applt. concerning potential/actual conflicts of interest of court-appointed habeas counsel.
Jan 22 2002Request for extension of time filed
  To file resp.'s brief. (5th request)
Jan 28 2002Extension of time granted
  To 3/25/2002 to file resp.'s brief. Dep. AG Mayer anticipates filing the brief by 3/30/2002. Only one further extension totaling 67 additional days is contemplated.
Feb 13 2002Request Denied
  Appellant's "Motion for Appointment of Special Counsel to Represent Fermin Rodriguez Ledesma for the Limited Purpose of Advising Him Concerning Potential and/or Actual Conflicts of Interest of Court-Appointed Appellate-Habeas Counsel," filed on January 14, 2002, is denied.
Mar 21 2002Request for extension of time filed
  To file resp.'s brief. (6th request)
Mar 26 2002Extension of time granted
  To 5/31/2002 to file resp.'s brief. Dep. Atty. General Mayer anticipates filing the brief by that date. No further extension is contemplated.
May 3 2002Counsel's status report received (confidential)
 
May 28 2002Request for extension of time filed
  To file resp.'s brief. (7th request)
May 30 2002Extension of time granted
  To 7/31/2002 to file resp.'s brief. Dep. Atty. Gen. Mayer anticipates filing that brief by 7/31/2002. No further extension will be granted.
Jul 8 2002Change of Address filed for:
  applt.'s lead counsel, Jeffrey J. Stuetz.
Jul 30 2002Request for extension of time filed
  To file resp.'s brief. (8th request)
Aug 1 2002Extension of time granted
  To 8/14/2002 to file resp.'s brief. Dep. AG Mayer anticipates filing that brief by 8/14/2002. No further extension will be granted.
Aug 13 2002Request for extension of time filed
  To file respondent's brief. (9th request)
Aug 16 2002Extension of time granted
  to 8-21-2002 to file respondent's brief. After that date, no further extension will be granted. The extension is granted based upon Deputy AG Mayer's representation that he anticipates filing the brief by 8-21-2002.
Aug 20 2002Filed:
  application for leave to file oversized respondent's brief. (brief submitted under separate cover)
Aug 21 2002Filed:
  amended declaration of service by mail for applic. to file oversized respondent's brief.
Aug 21 2002Filed:
  amended declaration of service by mail of respondent's brief.
Aug 21 2002Order filed
  granting application for leave to file oversized respondent's brief.
Aug 21 2002Respondent's brief filed
  (445 pp.)
Sep 12 2002Request for extension of time filed
  To file appellant's reply brief. (1st request)
Sep 12 2002Counsel's status report received (confidential)
 
Sep 16 2002Extension of time granted
  To 11/12/2002 to file appellant's reply brief. After that date, only three further extensions totaling about 150 additional days are contemplated. Extension is granted based upon counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 4/1/2003.
Nov 18 2002Counsel's status report received (confidential)
 
Nov 18 2002Request for extension of time filed
  To file appellant's reply brief. (2nd request)
Nov 19 2002Extension of time granted
  To 1/13/2003 to file appellant's reply brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 4/1/2003.
Jan 13 2003Counsel's status report received (confidential)
 
Jan 13 2003Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Jan 15 2003Extension of time granted
  To 3/14/2003 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 4/1/2003.
Feb 4 2003Change of Address filed for:
  associate counsel Donald M. Thommen.
Feb 24 2003Motion to withdraw as counsel filed
  by associate counsel Donald M. Thommen.
Mar 4 2003Filed:
  Declaration of lead counsel Jeffrey J. Stuetz in support of attorney Donald M. Thommen's motion to withdraw as associate counsel of record.
Mar 4 2003Filed:
  Supplemental declaration of service of motion to wthdraw as counsel of record.
Mar 14 2003Counsel's status report received (confidential)
 
Mar 14 2003Request for extension of time filed
  to file appellant's reply brief. (4th request)
Mar 19 2003Withdrawal of counsel allowed by order
  Good cause appearing, the application of appointed associate counsel for permission to withdraw as attorney of record for appellant Fermin Rodriguez Ledesma, filed February 24, 2003 (additional supporting declaration filed (March 4, 2003), is granted. The order appointing Donald M. Thommen as associate counsel of record for appellant Fermin Rodriguez Ledesma on his AA and related habeas corpus proceedings, filed May 31, 1995, is hereby vacated. Jeffrey J. Stuetz shall remain as counsel of record for appellant Fermin Rodriguez Ledesma for both the direct appeal and also the related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court. The request for appointment of "new habeas corpus counsel" is denied without prejudice.
Mar 19 2003Extension of time granted
  to 4/14/2003 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 4/13/2003.
Apr 15 2003Request for extension of time filed
  to file appellant's reply brief. (5th request)
Apr 18 2003Extension of time granted
  to 5/14/2003 to file appellant's reply brief. Extension is granted based upon counsel Jeffrey J. Stuetz's representation that he anticipates filing that brief by 5/14/2003. After that date, no further extension is granted.
May 15 2003Filed:
  appellant's "Application to File a 303 Page Reply Brief." (2 vol. brief submitted under separate cover)
May 16 2003Order filed
  The application of appellant for leave to file a reply brief in excess of the page limit is granted.
May 16 2003Appellant's reply brief filed
  2 vols. (303 pp.) (per rule 40(k))
Jul 8 2003Motion filed
  by attorney Jeffrey Stuetz to withdraw as counsel of record and motion to appoint new appellate, habeas and clemency counsel.
Jul 14 2003Request to file document under seal filed (in AA proceeding)
  Application of California Appellate Project to seal motion to withdraw as counsel of record, filed on 7-8-2003.
Aug 14 2003Application to file document under seal denied
  The application of the California Appellate Project in San Francisco, received July 14, 2003 (but not yet filed), to seal the motion to withdraw and supporting declaration of appointed counsel of record Jeffrey J. Stuetz in People v. Ledesma, S014394, is denied, and the lodged application to seal is ordered returned.
Aug 14 2003Counsel appointment order filed
  On the court's own motion, the order appointing Jeffrey J. Stuetz as counsel of record for appellant Fermin Rodriguez Ledesma, filed February 11, 1993, is hereby vacated with respect to the habeas corpus/executive clemency proceedings related to the above-referenced automatic appeal now pending in this court. Michael G. Millman, Executive Director of California Appellate Project, is hereby appointed to serve as interim H.C./executive clemency counsel of record for appellant Fermin Rodriguez Ledesma. The application of Jeffrey J. Stuetz to withdraw as counsel of record for appellant Fermin Rodriguez Ledesma, filed July 8, 2003, is dismissed as moot with regard to the capital-related habeas corpus/ executive clemency proceedings, and denied with regard to the automatic appeal now pending in this court. Mr. Stuetz shall continue to be responsible for all appellate duties specified in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, standards 1-1 and 2-1. Jeffrey J. Stuetz is directed to deliver to Executive Director Michael G. Millman, within 30 days from the filing of this order, all habeas corpus investigation work product, trial files, investigation reports, and related materials that he has obtained from appellant Fermin Rodriguez Ledesma or his trial counsel, paralegals, experts and investigators, or from any other source. The request for appointment of "new counsel for appellant on his [] habeas corpus and executive clemency proceedings" is denied without prejudice.
Aug 19 2003Counsel's status report received (confidential)
  from atty Stuetz.
Sep 3 2003Compensation awarded counsel
  Atty Stuetz
Sep 24 2003Compensation awarded counsel
  Atty Stuetz
Apr 13 2006Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 30, 2006, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
May 2 2006Case ordered on calendar
  May 30, 2006, at 1:00 p.m., in San Francisco
May 8 2006Argument rescheduled
  Case is now to be argued on June 2, 2006, at 1:30 p.m., in San Francisco
May 9 2006Filed letter from:
  Moona Nandi, Deputy Attorney General, dated May 9, 2006 re focus issues for oral argument.
May 15 2006Filed letter from:
  attorney Jeffrey J. Stuetz, dated May 11, 2006, re focus issues for oral argument and request for 45 minutes for argument.
May 22 2006Supplemental brief filed
  "Appellant's Supplemental Brief (Rules 29.1(d) & 36(d)) (2800 words; 14 pp.)
Jun 2 2006Cause argued and submitted
 
Aug 17 2006Opinion filed
  The judgment is reversed as to the robbery charge set forth in count three; the robbery special circumstance is set aside, and the judgment as to guilt and penalty is otherwise affirmed. Majority Opinion by George, CJ. ----- Joined by Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Aug 31 2006Rehearing petition filed
  by appellant. (3056 words; 18 pp.)
Sep 6 2006Time extended to consider modification or rehearing
  to November 15, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 25 2006Rehearing denied
  Petition for rehearing DENIED.
Oct 25 2006Remittitur issued (AA)
 
Oct 30 2006Received:
  acknowledgment of receipt of remittitur.
Nov 1 2006Related habeas corpus petition filed (post-judgment)
  No. S147702
Nov 6 2006Order filed (150 day statement)
 
Dec 20 2007Counsel appointment order filed
  The order appointing Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, to serve as interim habeas corpus/executive clemency counsel of record for condemned prisoner Fermin Rodriguez Ledesma, filed August 14, 2003, is hereby vacated. Terry J. Amdur is hereby appointed to represent condemned prisoner Fermin Rodriguez Ledesma for habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus/executive clemency counsel Jeffrey J. Stuetz's declaration, in support of his motion to withdraw, to the effect that he was unable to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of condemned prisoner Fermin Rodriguez Ledesma, and this court's delay in appointing replacement habeas corpus/executive clemency counsel.
Mar 12 2008Counsel's status report received (confidential)
  from attorney Amdur.
Mar 20 2008Compensation awarded counsel
  Atty Amdur
Apr 23 2008Counsel's status report received (confidential)
  from attorney Amdur.
Nov 7 2008Compensation awarded counsel
  Atty Amdur
Feb 19 2009Compensation awarded counsel
  Atty Amdur
May 21 2009Compensation awarded counsel
  Atty Amdur
Aug 19 2009Compensation awarded counsel
  Atty Amdur
Nov 19 2009Compensation awarded counsel
  Atty Amdur

Briefs
Apr 23 2001Appellant's opening brief filed
 
Aug 21 2002Respondent's brief filed
 
May 16 2003Appellant's reply brief filed
 
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